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Telecommunications Act 1996

PAPUA NEW GUINEA


Telecommunications Act 1996.


No. 57 of 1996.
Certified on: 21.01.97


ARRANGEMENT SECTIONS

PART I. - PRELIMINARY.

1. Compliance with constitutional requirements.
2. General objectives of Act.

PART II. - INTERPRETATION.

Division 1 - General.

3. Interpretation -

"access agreement"
"accredited test house"
"apparatus"
"appropriate fee"
"boundary"
"business day"
"cable television service"
"cable television system"
"cabling licence"
"carrier"
"carry"
"Chairman"
"charge"
"Chief Executive"
"communication"
"condition"
"convention"
"Corporation"
"customer cabling"
"customer equipment"
"defence organization"
"defence purposes"
"device"
"distinct places"
"dominate"
"earth-based facility"
"eligible corporation"
"equipment"
"exempt activity"
"facility"
"Fund"
"general carrier"
"Government Policy"
"install"
"interference"
"international service"
"international telecommunications operator"
"levy"
"licence"
"Licensee"
"line"
"line link"
"maintain"
"market"
"member"
"microwave facilities"
"mobile carrier"
"modifications"
"national numbering plan"
"network"
"network matter"
"PANGTEL"
"PANGTEL direction"
"participating carrier"
"payphone"
"permit"
"Post PNG"
"public access cordless telecommunications service"
"public mobile licence"
"public mobile telecommunications service"
"public payphone"
"public place"
"public telecommunications network"
"radcom facility"
"radiocommunication"
"radiocommunication transmitter"
"receiver"
"registered access agreement"
"reserved line link"
"reserved service"
"rural development service carrier"
"satellite-based facility"
"secondary public payphone licence holder"
"standard telephone service"
"tariff"
"Telikom"
"telecommunications"
"telecommunications network"
"telecommunications service"
"terms and conditions"
"value added services".

Division 2. - Boundaries of telecommunications networks.

4. End facilities.
5. Regulations may determine network boundaries.

Division 3. - Distinct places.

6. Basic rules.
7. Properties.
8. Combined areas.
9. Principal user of a property.
10. Eligible combined areas.
11. Equipment etc., connected to network.
12. Meaning of customer equipment of same type.
13. Line links.
14. Facilities ancillary to a line link.
15. Reserved line links.
16. Public mobile telecommunications service.
17. Public access cordless telecommunications services.

PART III. - APPLICATION OF ACT.

18. Act binds the State.
19. Act subject to Radio Spectrum Act 1996.

PART IV. - ESTABLISHMENT, FUNCTIONS AND POWERS OF PANGTEL.

Division 1. - Establishment and Membership etc., of PANGTEL.

20. Establishment, etc., of PANGTEL.
21. Membership.
22. Leave of absence.
23. Vacation of Office.
24. Vacancy not to affect powers or functions.

Division 2. - Meetings of PANGTEL.

25. Meetings of PANGTEL.
26. Disclosure of interests.

Division 3. - Finance.

27. Application of Public Finances (Management) Act 1995.
28. Application of Audit Act 1989.
29. Moneys of PANGTEL.
30. Application and investment of moneys.
31. Liability to taxation.

Division 4. - Functions and Powers of PANGTEL.

32. Functions of PANGTEL.
33. Powers of PANGTEL.
34. PANGTEL, carriers and licensees to prevent use of networks and facilities in commission of offences.
35. General government obligations of PANGTEL.
36. Minister may notify PANGTEL of policies of the Government.
37. Consultation.
38. Advisory Committees.

Division 5. - Staff of PANGTEL.

39. Chief Executive.
40. Qualification of Chief Executive.
41. Functions, etc., of Chief Executive.
42. Staff.
43. Access to information.
44. Charges for services provided by PANGTEL.

PART V. - RESERVED RIGHTS.

Division 1. - Reserved Rights.

45. Rights to reserve line links and ancillary facilities.
46. Supply of telecommunications services by satellite based facilities or microwave facilities.
47. Provision of public pay phones.
48. Supply of public mobile telecommunications services.
49. Action to enforce this part.

Division 2. - Exceptions.

50. Acts done on behalf of a carrier.
51. Line links used by transport authorities.
52. Line links used by broadcaster.
53. Line links for Defence purposes.

PART VI. - LICENSING AND GENERAL OBLIGATIONS OF LICENSEES.

Division 1. - Objectives of this Part.

54. Objectives.
55. Exclusive rights.

Division 2. - Grant of licence.

56. Application for general telecommunications licences and public mobile licences and certain other licences.
57. Decision on application.
58. Revocation of licence.
59. Transfer of licence.
60. Decision on application.

Division 3. - Licence conditions.

61. Conditions to which a licence is subject.
62. Conditions.
63. Declaration of conditions of licences.
64. Notification and date of effect of instrument under Section 65.
65. PANGTEL to consult before changing licence conditions.

Division 4. - International telecommunications operators.

66. Code of practice relating to dealings with international telecommunications operators.

PART VII. - PROTECTION OF COMMUNICATIONS.

67. Licensee to maintain confidentiality.

PART VIII. - POWERS OF CARRIERS.

68. Land Access Code for carriers.
69. Land Access Code binding on carriers.
70. Powers to inspect land etc.,
71. Trees may be cut etc.,
72. A carrier may replace, repair and maintain facilities etc.,
73. Power extends to carrier's employees etc.,
74. Carrier to do as little damage as practicable etc.,

PART IX. - PROHIBITION OF DISCRIMINATION AND PROVISION OF TARIFFS.

Division 1. Discrimination.

75. Dominant carrier not to discriminate between acquirers of Telecommunications services.
76. Exceptions.
77. Action for discrimination.

Division 2. - Tariffs.

78. Tariffs.
79. Variation and revocation of tariff.
80. Terms and conditions in tariff apply unless excluded.

PART X. - NATIONAL NUMBERING PLAN.

81. National numbering plan.

PART XI - ACCESS TO NETWORKS.

82. Right to access.
83. PANGTEL'S role in negotiations of access agreements.
84. Arbitration by PANGTEL of access terms.
85. Determination under Section 87 taken to be an access agreement.
86. Charging principles.

PART XII. - TECHNICAL REGULATION.

87. Determination of technical standards.

PART XIII. - CUSTOMER EQUIPMENT AND CABLING.

Division 1. - Permits for customer equipment.

88. Application for permits.
89. Issue of new permits.
90. Variation of permits by PANGTEL.
91. Issue and variation of permits.
92. Register of customer equipment.
93. Offences relating to customer equipment.
94. Disconnection of customer equipment for which there is no permit.
95. Cancellation of permits.
96. Representations concerning cancellation of permits.
97. Transfer of permits.
98. Accreditation etc., of test houses.
99. PANGTEL may limit application of division in relation to customer equipment.

Division 2. - Licensing of cabling providers.

100. Application for cabling licences.
101. Issue of cabling licences.
102. Variation of cabling licences by PANGTEL.
103. Issue and variation of cabling licences.
104. Register of cabling licences.
105. Offences relating to unlicensed cabling work.
106. Deemed refusal of cabling licences.
107. Representations concerning variation of cabling licences.
108. Cancellation of cabling licences.
109. Representations concerning cancellation of cabling licence.
110. Surrender of cabling licences.
111. PANGTEL may limit application of division in relation to customer cabling.

Division 3. - Connection of customer equipment and customer cabling to telecommunications networks.

112. Disconnection etc., of customer equipment or customer cabling.
113. Action for unauthorized connection to telecommunications network of customer equipment or customer cabling.

Division 4. - Miscellaneous.

114. Reconsideration of decisions.
115. Effect on operation of other laws.
116. Evidence.

PART XIV. - LICENSING OF CABLE TELEVISION SERVICE.

Division 1. - Licensing of cable television service.

117. Application for cable television service licence.
118. Issue of cable television service licences.
119. Variation of cable television service licence by PANGTEL.
120. Issue and variation of cable television service licence.
121. Register of cable television service licences.
122. Offences relating to unlicensed television cable services.
123. Deemed refusal of cable television service licences.
124. Representations concerning variation of cable television system licences.
125. Representations prior to cancellation of cable television service licence.
126. Cancellation of cable television service system licences.
127. Surrender of cable television service licences.
128. Difficulties with provisions of this Part.

PART XV. - RURAL DEVELOPMENT OBLIGATIONS.

Division 1. - Preliminary.

129. Declaration of policy.
130. Rural development obligations.

Division 2. - Determination of Rural Development Policy.

131. Government policy directions on rural development obligations.

Division 3. - PANGTEL to determine procedure.

132. PANGTEL to determine procedures.
133. Variation of procedures.
134. Availability of procedures.
135. PANGTEL may declare universal service carrier and rural development service carriers.
136. Effect of declaration: meaning of "Universal Services Carrier" and "Rural Development Service Carrier."
137. Prescribed carrier obligation of universal service carrier.
138. PANGTEL must propose services areas for declaration as for each year.

Division 4. - Assessment of liability for levy and entitlement to distribution.

139. PANGTEL to determine entitlements.
140. Assessments and collection of levy payments.

Division 5. - Disclosure by PANGTEL of information about the basis and methods of an assessment.

141. Public may request information.
142. Carrier may request information that is unavailable under Section 132.
143. How PANGTEL to comply with a request.

Division 6. - Distribution of Fund.

144. Rural Development Fund.
145. Payments into fund.
146. Purposes of fund.
147. Levy distribution to participating carrier.
148. Levy to be distributed until paid.

PART XVI. - PUBLIC INQUIRIES.

149. When inquiry may be held.
150. Informing the public about an inquiry.
151. Discussion paper.
152. Written submissions; protection from civil actions.
153. Public hearings.
154. Hearings in camera.

PART XVII. - INVESTIGATIONS.

155. Matters PANGTEL may investigate.
156. Complaints.
157. Investigations.
158. Preliminary inquiries.
159. Conduct of investigations.
160. Complainant and certain other persons to be informed of various matters.
161. Reference of matters to ombudsman.
162. Reports on investigations.
163. PANGTEL may direct carrier to remedy breach of licence condition.
164. PANGTEL may direct carrier to prescribed carrier obligation.
165. Protection from civil actions.
166. Public register of information about investigations.

PART XVIII. - OFFENCES AND PENALTIES.

167. Establishing a telecommunications network, etc., without a licence.
168. Fraudulent use of telecommunication network.
169. Improper use of telecommunications network.
170. Modification etc., of message.
171. Interception and disclosure of messages.
172. Protection of telecommunications installations,
173. Criminal liability of Directors, Officers etc., of bodies corporate.
174. General penalties.
175. Consent for prosecution under Act.
176. Power to compound offences.
177. Prosecutions under other laws.

PART XIX. - ENFORCEMENT.

Division 1. PANGTEL directions and conditions of licences.

178. Enforcement of PANGTEL Directions and conditions.
179. Pecuniary penalties for contraventions of PANGTEL directions or conditions.
180. Civil action for recovery of pecuniary penalties.
181. Remedies may be pursued at the same time.
182. Criminal proceedings not be brought for contraventions of PANGTEL directions or conditions.

Division 2. - Powers of entry, search and seizure.

183. Appointment of inspectors.
184. Identity card.
185. Searches to monitor compliance with Act etc.,
186. Offence-related searches and seizures.
187. Warrants may be granted by telephone.
188. Power to require information etc.,
189. Retention of books, records and documents.

PART XX. - MISCELLANEOUS.

190. Nature of unenforceability of agreements.
191. Review of decisions.
192. Statement to accompany notification of decision.
193. PANGTEL to review and report to Minister on competitive safeguards and carrier performance.
194. National Court powers relating to the injunctions.
195. PANGTEL may obtain information and documents from carriers.
196. PANGTEL may obtain information and documents from persons other than carriers.
197. Person to use protected name or protected symbol.
198. Consultants.
199. Power of government in emergency.
200. Delegation.
201. Service of notices.
202. Regulations.


AN ACT

entitled

Telecommunications Act 1996,

Being an Act relating to telecommunications,

MADE by the National Parliament to come into operation in accordance with a notice in the National Gazette by the Head of State, acting with, and in accordance with, the advice of the Minister.

PART I - PRELIMINARY.

  1. COMPLIANCE WITH CONSTITUTIONAL REQUIREMENTS.

(1) This Act, to the extent that it regulates or restricts a right or freedom referred to in Subdivision III.3.C (qualified rights) of the Constitution namely -

(a) the right to freedom from arbitrary search and entry conferred by Section 44 of the Constitution; and
(b) the right to freedom of conscience, thought and religion conferred by Section 45 of the Constitution; and
(c) the right to freedom of expression conferred by Section 46 of the Constitution; and
(d) the right to freedom of employment conferred by Section 48 of the Constitution;. and
(e) the right to privacy conferred by Section 49 of the Constitution; and
(f) the right to freedom of information conferred by Section 51 of the Constitution;

is a law that is made for the purpose of giving effect to the public interest in public order and public welfare.

(2) For the purposes of -

(a) Section 29 of the Organic Law on Provincial Government; and
(b) Section 41 of the Organic Law on Provincial Governments and Local-level Governments,

it is hereby declared that this Act relates to a matter of national interest.

(3) For the purposes of Section 53 (Protection from unjust deprivation of property) of the Constitution, it is hereby declared that the purposes of this Act are public purposes.

  1. GENERAL OBJECTIVES OF ACT.

The objectives of this Act include -

(a) ensuring that the standard telephone service -

(iii) is supplied at performance standards and technical standards that reasonably meet the social, industrial and commercial needs of the Papua New Guinea community; and

(b) ensuring that the carrier or carriers achieve high levels of accountability and responsiveness to customer and community needs; and
(c) achieving optimal rates of expansion and moderation for Papua New Guinea's telecommunications infrastructure and network; and
(d) creating a regulatory environment for the supply of telecommunications services which promotes fair and efficient market conduct; and
(e) promoting the development of Papua New Guinea's telecommunications capabilities, industries and skills, for use in Papua New Guinea and overseas.

PART II. - INTERPRETATION.

Division 1. - General.

  1. INTERPRETATION.

In this Act, unless the contrary intention appears -

"access agreement" means an agreement made between two or more licensees entered into pursuant to Part XI;
"accredited test house" means a test house in relation to which there is in operation an accreditation granted under regulations made under Section 98;
"apparatus", for the application of Part , includes a satellite, a satellite television receiver only, an earth station, a satellite dish, an antenna, a television receiver set, a video cassette recorder, a video tape recorder, a radio frequency amplifier and any other equipment used for the provision of cable television service;
"appropriate fee" in relation to an application, means the fee for the application that is payable under this Act;
"boundary", in relation to a telecommunications network, has a meaning affected by Division II.2;
"business day" means a day that is not a Saturday, a Sunday or a public holiday in the place concerned;
"cable television service" means a service provided by using a cable television system;
"cable television system" means a system whereby images and/or sound signals that -
are re-transmitted by a cable or cable distribution network for reception by apparatus;
"cabling licence" means a licence issued under Section 101 to perform customer cabling work;
"carrier" means a general carrier or a mobile carrier;
"carry" includes transmit, switch and receive;
"Chairman" means the Chairman of PANGTEL and includes any acting Chairman of PANGTEL;
"charge" includes -
"Chief Executive" means the Chief Executive of PANGTEL;
"communication" includes any communication -
"condition" means, in relation to a licence, a condition or restriction to which the licence is subject, or will be subject, as the case requires;
"convention" means a convention to which Papua New Guinea is a party or an agreement or arrangement between Papua New Guinea and a foreign country, and includes, for example, an agreement, arrangement or understanding between PANGTEL and an official or authority of a foreign country;
"Corporation" means the Post and Telecommunication Corporation;
"customer cabling" means a line that -
"customer equipment" means equipment that is, or is intended to be, connected to a telecommunications network operated by a carrier, other than equipment that is used, or intended for use, within the boundaries of such a network;
"defence organization" means -
"defence purposes" means any one or more of the following:-
"device" means an appliance that can be used for the purpose of receiving, transmitting, processing and converting radiocommunication;
"distinct places" has the meaning given by Division II.3;
"dominate" has a meaning affected by Section 75(3);
"earth-based facility" means a facility other than a satellite-based facility;
"eligible corporation" means a body corporate that is incorporated in Papua New Guinea and is in compliance with the Investment Promotion Act 1992;
"equipment" means any apparatus or equipment used, or intended for use, in or in connection with a telecommunications network, but does not include a line;
"exempt activity" means an activity, or conduct, engaged in, in the course of, for the purposes of, or otherwise in connection with -
"facility" -
"Fund" means the Rural Development Fund established pursuant to Section 144;
"general carrier" means the holder of a general telecommunications licence in force under Part VI;
"Government Policy" means the general policy from time to time relating to telecommunications of the State of Papua New Guinea as approved by the National Executive Council, as amended with the approval of the National Executive Council;
"install" include alter, move, remove and replace;
"interference" means the process of impairing the fidelity or discernment of radiocommunication;
"international service" means a telecommunications service between a place within Papua New Guinea and a place outside Papua New Guinea;
"international telecommunications operator" means a person (other than a carrier) who operates a telecommunications network outside Papua New Guinea for or in relation to the supply of international services, or who supplies such services;
"levy" means levy imposed by Part XV;
"licence" means a licence granted under this Act;
"licensee" means a person who is the holder of a licence issued under this Act and, for the avoidance of doubt, includes a carrier;
"line" means a wire, cable, optical fibre, tube, conduit, waveguide or other physical medium used, or intended for use, as a continuous artificial guide for or in connection with carrying communications by means of guided electromagnetic energy;
"line link" has the meaning given by Section 13;
"maintain" includes adjust and repair;
"market" means the market for telecommunications services -
"member" means a member of PANGTEL, and includes the Chief Executive;
"microwave facilities" means radio equipment, power supplies and external structures such as antennas, towers and feeder cabling to radio equipment used for the operation of a telecommunications network.
"mobile carrier" means the holder of a public mobile licence in force under Part VI;
"modifications" includes variations, additions, omissions and substitutions;
"national numbering plan" means the plan prepared under Part X in force from time to time;
"network" means -
"network matter" means a matter relating to -
"PANGTEL" means the Papua New Guinea Telecommunication Authority;
"PANGTEL direction" means a direction given by PANGTEL to a licensee under any provision of this Act;
"participating carrier" means, in relation to any financial year the universal service carrier and each rural development service carrier declared under Section 135 for that year.
"payphone" means a fixed telephone that -
"permit" means a permit issued under Division XIII.1 for connection of customer equipment to a telecommunications network;
"Post PNG" means Post PNG Ltd., a company incorporated or to be incorporated under the Companies Act (Chapter 146);
"public access cordless telecommunications service" has the meaning given by Section 17;
"public mobile licence" means a licence to supply, install and maintain a public mobile telecommunications service issued pursuant to Part VI;
"public mobile telecommunications service" has the meaning given by Section 16;
"public payphone" means a payphone located in a public place;
"public place" means a place to which the public usually has access, or usually has access except during particular hours of the day or particular days of the week, but does not include -
"public telecommunications network" means a telecommunications network operated by a carrier;
"radcom facility" means a facility used for or in relation to carrying communications by means of radiocommunication;
"radiocommunication" has the same meaning as the Radio Spectrum Act 1996;
"radiocommunication transmitter" means an electronic device intended for the conversation of radiocommunication into a form suitable for emission by way of antennae or cables;
"receiver" means an electronic device capable of receiving and transforming rediocommunication to a usable form;
"registered access agreement" means an access agreement registered by PANGTEL under Section 85 or Section 86(4);
"reserved line link" has the meaning given by Section 15;
"reserved service" means a telecommunication service reserved to a carrier under Part V;
"rural development service carrier" means a carrier declared by PANGTEL to be a rural development service carrier for a specified service area under Section 135(2);
"satellite-based facility" means a facility in a satellite;
"secondary public payphone licence holder" means a holder of licence to supply, install and maintain a public payphone issued under Part VI;
"standard telephone service" means -
"tariff" in relation to a carrier, means a tariff given to PANGTEL by a carrier under Section 78 and in force for the time being, whether or not it has been varied under Section 79 but does not include a document that PANGTEL has disallowed under Section 78(4);
"Telikom" means Telikom PNG Ltd, a company incorporated or to be incorporated under the Companies Act (Chapter 146);
"telecommunications" means the emission, transmission or reception, through the agency of electricity or electromagnetism, or any sounds, signs, signals, writing, images or intelligence of any nature by wire, radio, optical or other electromagnetic systems whether or not such signs, signals, writing, images, sounds or intelligence have been subjected to rearrangement, computation or other process by any means in the course of their transmission, emission or reception;
"telecommunications network" means a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both;
"telecommunications service" means a service for carrying communications by means of guided or unguided electromagnetic energy or both;
"terms and conditions", in relation to supplying telecommunications services, includes –
"value added services" means a service, other than a reserved service, which is identified in Government Policy as being suitable for the grant of a value added service licence under Part VI.

Division 2. - Boundaries of telecommunications networks.

  1. END FACILITIES.

(1) An end facility is -

(a) a main distribution frame; or
(b) a telephone socket.

(2) An end facility is on a line link where, and only where, the end facility is connected to a line that is, or forms part of, the line link.

  1. REGULATIONS MAY DETERMINE NETWORK BOUNDARIES.

The regulations may make provision for or in relation to -

(a) defining the boundaries of a telecommunications network; or
(b) determining the equipment, lines and other facilities that are to be taken to be beyond, or not beyond, the boundaries of a telecommunications network.

Division 3. - Distinct places.

  1. BASIC RULES.

(1) Places are distinct unless they are all in the same area because of Subsection (2) or (3).

(2) Places are in the same area if they are all situated in the same property as defined by Section 7.

(3) Places are in the same area if they are situated in properties each of which forms part of a combined area as determined under Section 8 and -

(a) the same person or persons is or are the principal user (as defined by Section 9) of all the properties that together constitute that combined area; or
(b) because of a determination in force under Section 10, that combined area is an eligible combined area for the purposes of this paragraph.

(4) The later provisions of this Division have effect only for the purposes of this Division.

  1. PROPERTIES.

(1) In this section:

"land" includes premises and a part of premises;

"State Lease" has the same meaning as defined in the Land Act (Chapter 185).

(2) An area of land is a property if there is a State lease in relation to that area.

  1. COMBINED AREAS.

(1) Two contiguous properties form a combined area.

(2) Where -

(a) a property is contiguous with another property; and

(b) the other property forms part of a combined area,

the first-mentioned property, and the combined area referred to in Paragraph (b), together form a combined area.

(3) Subsection (2) is recursive, that is, the reference in Subsection (2) (b) to a combined area is a reference to something that is a combined area because of any other application or applications of this section.

  1. PRINCIPAL USER OF A PROPERTY.

(1) Subject to Subsection (2), the principal user of a property is the person who -

(a) occupies the property; or

(b) uses the property for a purpose that is the sole or principal purpose for which the property is used.

(2) Where two or more persons -

(a) together occupy a property; or

(b) together use a property for a purpose that is the sole or principal purpose for which the property is used,

they are taken together to be the principal user of the property.

  1. ELIGIBLE COMBINED AREAS.

(1) PANGTEL may by writing determine that specified combined areas are eligible combined areas for the purposes of Section 6(3)(b).

(2) PANGTEL may make or vary a determination under Subsection (1) only where -

(a) PANGTEL has consulted each general carrier whose interests may, in the opinion of that carrier, be affected by the determination, or by the determination as varied, as the case may be; and

(b) in PANGTEL's opinion, the determination, or the determination as varied, as the case may be, will not erode unduly the practical value of the general carrier's rights under Sections 45 and 46.
  1. EQUIPMENT ETC., CONNECTED TO NETWORK.

Equipment, or a line or other facility, is connected to a telecommunications network where the equipment, line or other facility (either by itself or in conjunction with any other thing) is being used to supply, or is installed or connected for use to supply, telecommunications services by means of the network, whether or not the equipment, line or other facility is comprised in, or is in physical contact with any part of, the network.

  1. MEANING OF CUSTOMER EQUIPMENT OF SAME TYPE.

An item of customer equipment is of the same type as another item of customer equipment where -

(a) the items were produced to specifications that differ in no material respect; and

(b) the respective ways in which the items were produced differ in no material respect; and
(c) the form and functions of the one item differ in no material respect from the form and functions of the other item.
  1. LINE LINKS.

(1) A line constitutes a line link.

(2) Where -

(a) a line is connected to another line; and

(b) the other line constitutes, or forms part of, a line link,

the first-mentioned line, and the line link referred to in Paragraph (b), together constitute a line link.

(3) Subsection (2) is recursive, that is, the reference in Subsection (2)(b) to a line link is a reference to something that is a line link because of any other application or applications of this section.

(4) For the purposes of Subsection (2), a line is connected to another line where, and only where -

(a) the lines are connected to each other; or

(b) each of the lines is connected to the same facility (other than a line),

in such a way that a communication can be carried, by means of the two lines, or by means of facilities including the two lines, in the same way as if the two lines were a single line.

(5) A facility other than a line does not form part of any line link.

  1. FACILITIES ANCILLARY TO A LINE LINK

A reference to a facility ancillary to a line link is a reference to -

(a) a tunnel, hole, pit, duct, pipe, sheath, conduit or similar thing; or

(b) a pole, tower, mast or similar structure,

so far as it is used, or intended for use, to contain, support or protect -

(c) a line or lines constituting, or forming part of the line link; or

(d) equipment connecting two or more such lines.
  1. RESERVED LINE LINKS.

(1) Subject to Subsection (2), a reserved line link is -

(a) a line link between distinct places within Papua New Guinea; or

(b) a line link between a place within Papua New Guinea and a place outside Papua New Guinea;

whether or not installed or maintained by a general carrier or by a secondary public licence holder.

(2) Where -

(a) but for this subsection, the whole of a line link would be a reserved line link; and

(b) a line that forms part of that line link is beyond the boundary of a reserved line link that also forms part of the first mentioned line link,

that line is not, and does not form part of, a reserved line link.

  1. PUBLIC MOBILE TELECOMMUNICATIONS SERVICE.

(1) A telecommunications service is a public mobile telecommunications service where, and only where -

(a) it is not a public access cordless telecommunications service; and

(b) it is offered to the public generally; and
(c) a person can use it while moving continuously between places; and
(d) customer equipment used for or in relation to the supply of the service is not in physical contact with any part of the telecommunications network by means of which the service is supplied; and
(e) a facility that is used for or in relation to supplying the service is connected to a telecommunications network operated by a general carrier; and
(f) neither Subsections (2) nor (3) prevents the service from being a public mobile telecommunications service.

(2) A telecommunications service is not a public mobile telecommunications service where -

(a) it is supplied by means of a telecommunications network (in this subsection called the "primary network") that is connected to -

(i) a telecommunications network (in this subsection called a "general network") operated by a general carrier; or
(ii) each of two or more general networks; and

(b) the principal function of the primary network is to supply telecommunications services between equipment connected to the primary networks and other such equipment; and

(c) the supply of telecommunications services between such equipment and equipment connected to a general network is at most an ancillary function of the primary network; and

(d) despite the connection or connections referred to in Paragraph (a), the primary networks cannot be used in carrying a communication, as a single transaction, between equipment connected to a general network and other such equipment.

  1. PUBLIC ACCESS CORDLESS TELECOMMUNICATIONS SERVICES.

(1) A telecommunications services that, but for Section 16(1)(a), would be a public mobile telecommunications service is a public access cordless telecommunications service unless -

(a) the service is supplied by the use of facilities that include at least two fixed facilities (called "base stations") each of which transmits and receives signals to and from customer equipment (called "mobile equipment") that is -

(i) used for or in relation to the supply of the service; and
(ii) located within a particular area (called a "cell"); and

(b) the service includes the functions necessary to do the following while the service is carrying a communication made to or from particular mobile equipment: -

(i) determine in which cell the equipment is located and cause the base station in that cell to transmit and receive signals to and from the equipment; and
(ii) when the equipment moves from one cell to another, cause the base station in the one cell to stop, and the base station in the other cell to start, transmitting and receiving signals to and from the equipment.

(2) The regulations may provide that -

(a) Subsection (1)(a) and (b) shall be disregarded in determining whether prescribed telecommunications services are public access cordless telecommunications services; and

(b) prescribed telecommunications services are not public access cordless telecommunications services; and
(c) the supply of prescribed equipment is not a public access cordless telecommunications service.

PART III - APPLICATION OF ACT.

  1. ACT BINDS THE STATE.

This Act binds the State.

  1. ACT SUBJECT TO RADIO SPECTRUM ACT 1996.

(1) This Act has effect subject to the Radio Spectrum Act 1996.

(2) For the avoidance of doubt it is hereby declared that a licence under the Radio Spectrum 1996 which authorizes a person to do something does not entitle the person to do that thing where he or she is prohibited by or under this Act from doing it, unless a condition of the licence requires the person to do it.

PART IV. - ESTABLISHMENT, FUNCTIONS AND POWERS OF PANGTEL.

Division 1. - Establishment and Membership etc., of PANGTEL.

  1. ESTABLISHMENT, ETC., OF PANGTEL.

(1) There is established the Papua New Guinea Telecommunication Authority, to be known as PANGTEL.

(2) PANGTEL -

(a) is a body corporate with perpetual succession; and

(b) is to have a common seal; and
(c) may sue and be sued in its corporate name.
  1. MEMBERSHIP.

(1) PANGTEL consists of the following members -

(a) the Chairman; and

(b) the Chief Executive, ex-officio; and
(c) three other members.

(2) The Chairman and members (other than the ex officio member) -

(a) shall be appointed by notice in the National Gazette by the Head of State, acting on advice, given after consideration of recommendations by the Minister; and
(b) shall be appointed for such period not exceeding five years as is specified in the instrument of appointment; and
(c) are eligible for re-appointment; and
(d) hold office on a part-time basis on such terms and conditions of employment as are determined by the Minister or, in the absence of any determination, as are prescribed.

(3) A person who has attained the age of 65 years shall not be appointed as the Chairman or as a member, and a person shall not be appointed as the Chairman or as a member for a period that extends beyond the day on which he will attain the age of 65 years.

(4) A person is not qualified to be appointed as Chairman or a member unless he is qualified or experienced in one or more of the following:-

(a) industry;

(b) commerce;
(c) technology;
(d) consumer affairs;
(e) economics;
(f) law;
(g) public administration.
  1. LEAVE OF ABSENCE.

The Minister may grant to the Chairman or to a member (other than an ex officio member) leave in writing to be absent from a meeting or meetings of PANGTEL.

  1. VACATION OF OFFICE.

(1) The Chairman or a member (other than an ex officio member) may resign his office by writing signed by him and delivered to the Minister.

(2) Where the Chairman or a member (other than an ex officio member) -

(a) becomes permanently incapable of performing his duties; or

(b) resigns his office in accordance with Subsection (1); or
(c) is absent, except with the written consent of the Minister from three consecutive meetings of PANGTEL; or
(d) fails to comply with Section 26; or
(e) engages in paid employment that, in the Minister's opinion, conflicts with the proper performance of his duties under this Act or any other law; or
(f) becomes bankrupt or applies to take the benefit of any law for the benefit of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit; or
(g) is convicted of an offence punishable under a law by a term of imprisonment for one year or longer, or by death, and as a result of the conviction is sentenced to death or imprisonment, the Head of State, acting on advice, given after considering a recommendation by the Minister, shall terminate his appointment.

(3) The Minister may, at any time, by written notice, advise the Chairman or a member (other than an ex officio member) that he intends to recommend the termination of his appointment on the grounds of inefficiency, incapacity or misbehaviour.

(4) Within 14 days of receipt of a notice under Subsection (3), the Chairman or member may reply in writing to the Minister who shall consider the reply and where appropriate recommend to the National Executive Council that the appointment be terminated.

(5) The Head of State, acting on advice, given after considering a recommendation under Subsection (4), may terminate the appointment.

(6) Where the Chairman or member referred to in Subsection (3) does not reply in accordance with Subsection (4) his appointment is terminated.

  1. VACANCY NOT TO AFFECT POWERS OR FUNCTIONS.

The exercise of a power or the performance of a function of PANGTEL is not invalidated by reason only of a vacancy in the membership of PANGTEL.

Division 2. - Meetings of PANGTEL.

  1. MEETINGS OF PANGTEL.

(1) PANGTEL shall meet -

(a) subject to Subsection (2), as often as is necessary to ensure the efficient performance of its functions; and

(b) at such times and places as PANGTEL determines.

(2) The Chairman -

(a) may call a meeting of PANGTEL at any time; and

(b) shall call a meeting of PANGTEL where requested to do so in writing by two other members.

(3) Each member is entitled to receive three business days' notice of a meeting of PANGTEL but this requirement may be waived where each member consents in writing to waive the requirement.

(4) At a meeting of PANGTEL -

(a) a majority of the members constitutes a quorum; and

(b) the Chairman shall preside and where the Chairman is unable to attend a meeting the members present shall appoint one of their number to preside; and

(c) a member may participate in a meeting by telephone or other means of communication and in this event is considered to be present and shall be counted towards a quorum and may vote; and

(d) matters arising shall be decided by a majority of votes of those present and voting; and
(e) the person presiding has a deliberative and in the event of an equality of votes on a matter, also a casting vote.

(5) PANGTEL shall cause minutes of its meetings to be recorded and kept.

(6) Subject to this Act, the procedures of PANGTEL are as determined by PANGTEL.

  1. DISCLOSURE OF INTERESTS.

(1) A member who has a direct or indirect pecuniary interest in a matter being considered by PANGTEL shall, as soon as possible after the relevant facts have come to the members knowledge, disclose the nature of the interest at a meeting of PANGTEL.

(2) A disclosure under Subsection (1) shall be recorded in the minutes of the meeting and the member shall not, unless the Chairman otherwise determines -

(a) be present during any deliberation by PANGTEL about that matter; or

(b) take part in any decision of PANGTEL relating to that matter.

(3) For the purpose of the Chairman making such a determination in relation to a member who has made a disclosure, a member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates shall not -

(a) be present during any deliberation by PANGTEL for the purpose of making the determination; or

(b) take part in making this determination.

Division 3. - Finance.

  1. APPLICATION OF PUBLIC FINANCES (MANAGEMENT) ACT 1995.

Part VIII of the Public Finances (Management) Act 1995 applies to and in relation to PANGTEL.

  1. APPLICATION OF AUDIT ACT 1989.

The Audit Act 1989 applies to and in relation to PANGTEL.

  1. MONEYS OF PANGTEL.

(1) The activities of PANGTEL shall be funded from the following sources: -

(a) sums appropriated by the National Budget;

(b) fees and other charges payable to PANGTEL in the performance of its functions under this Act;
(c) grants, donations or other contributions;
(d) loans raised by PANGTEL.

(2) PANGTEL shall not utilise the Fund for the purpose of fulfilling its functions under this Act other than for the purpose of the Fund pursuant to Section 146.

  1. APPLICATION AND INVESTMENT OF MONEYS.

(1) Subject to Subsection (2), the moneys of PANGTEL may be applied -

(a) in the payment or discharge of the expenses, obligations including international obligations, or liabilities incurred in connection with the performance of its functions or exercise of its powers under this Act; and

(b) in the payment of any remuneration or allowances payable under this Act.

(2) The moneys of PANGTEL that are not immediately required for the purposes of PANGTEL may be invested -

(a) on fixed deposit with a bank approved by the Minister; or

(b) in securities of the Government; or
(c) in such other manner as may be approved by the Minister.
  1. LIABILITY TO TAXATION.

PANGTEL is not subject to taxation under any other Act and in particular, sales tax is not payable to or by PANGTEL, or by any other person, on goods that are for use by, or services provided to, or by PANGTEL.

Division 4. - Functions and Powers of PANGTEL.

  1. FUNCTIONS OF PANGTEL.

(1) PANGTEL shall be responsible for -

(a) providing economic monitoring, control, inspection and regulation of the telecommunications industry; and

(b) implementing the Government Policy notified to PANGTEL in accordance with Section 36; and
(c) establishing technical standards for the telecommunications industry; and
(d) ensuring that this Act is implemented with due regard to the public interest; and
(e) establishing performance standards for any carrier and monitoring compliance with those standards; and
(f) reporting to the Minister on the performance of any carrier (including the quality of consumer service); and
(g) overseeing the fulfilment by licensees of their obligations under any enactment, and their compliance with any directions issued by PANGTEL pursuant to Section 33(2); and
(h) advising the Minister in the formulation of national policies in respect of the promotion, development and regulation of telecommunication and the telecommunications industry; and
(i) approving guidelines for carriers and other licensees for the purpose of keeping of accounts and cost allocation manuals; and

(j) developing and monitoring procedures for ensuring the safety and quality of telecommunications services and, for that purpose, determining technical standards for network matters, issuing permits for the connection of customer equipment to telecommunications networks and the performance of cabling; and

(k) developing and monitoring a system for reviewing and responding to complaints by consumers in relation to telecommunications services; and
(l) authorizing any person to conduct such technical tests or evaluations relating to telecommunication as PANGTEL thinks fit; and
(m) determining a code of practice for dealings by licensees with international communications operators; and
(n) acting as the duly appointed representative of the State at all international bodies or authorities which have the purpose of designating international technical standards; and
(o) monitoring every access agreement and assisting in the resolution of any dispute relating thereto; and

(p) monitoring the use of telecommunications services on any ship or aircraft; and

(q) controlling the importation of any apparatus capable of being used for purposes of telecommunications; and
(r) regulating types of telecommunications equipment which may be connected to a telecommunications network; and
(s) consulting, where appropriate, commercial, industrial and consumer organizations about any matter relating to the supply of telecommunications services; and
(t) monitoring, and reporting to the Minister on, charges paid by consumers; and
(u) developing and monitoring a numbering plan for Papua New Guinea; and
(v) granting of licences under this Act; and
(w) declaring service areas for the purposes of Part XIV; and
(x) in accordance with the provisions of the Radio Spectrum Act 1996 -
(y) administering the rural development obligations in accordance with Part XIV; and
(z) performing functions assigned to PANGTEL under any other law.

(2) When developing standards under Subsection (1)(e), PANGTEL shall have regard to the best international practice performance indicators available to it in this context of the development of telecommunications in Papua New Guinea.

  1. POWERS OF PANGTEL.

(1) PANGTEL has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.

(2) PANGTEL may give written directions to a carrier, any licensee or any person in connection with any of its functions under this Act.

(3) PANGTEL may, by written notice, direct a licensee to permit a person authorized in writing by PANTEL to inspect and to make copies of the books of account or records of the licensee to determine whether the licensee is complying with this Act and with its obligations under this licence.

(4) This section is not limited by any other provision of this Act or any other Act that confers a power on PANGTEL.

  1. PANGTEL, CARRIERS AND LICENSEES TO PREVENT USE OF NETWORKS AND FACILITIES IN COMMISSION OF OFFENCES.

(1) PANGTEL, carriers and licensees, shall, in exercising their respective powers and rights, do their best to prevent telecommunications networks and facilities operated by carriers, or by such persons, from being used in, or in relation to, the commission of an offence against the laws of Papua New Guinea.

(2) PANGTEL, carriers and licensees shall give to officers and authorities of the State such help as is reasonably necessary for any of the following purposes:-

(a) enforcing the criminal law and laws imposing pecuniary penalties; and

(b) protecting the public revenue; and
(c) safeguarding national security.

(3) PANGTEL is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in performance or purported performance of the duty imposed by Subsection (1) or (2).

(4) A carrier or licensee is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith -

(a) in performance or purported performance of the duty imposed by Subsection (1) or (2); or

(b) in compliance or purported compliance with a condition of a general telecommunications licence or public mobile licence held by the carrier, being a condition that is expressed to have the purpose of giving effect to Subsection (1) or (2); or
(c) in compliance or purported compliance with a direction that PANGTEL has given in good faith in performance or purported performance of the duty imposed by Subsection (1) or (2).

(5) An officer, employee or agent of PANGTEL or of a carrier or licensee, is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by PANGTEL, the carrier, or the licensee as mentioned in Subsection (2), (3) or (4), as the case may be.

  1. GENERAL GOVERNMENT OBLIGATIONS OF PANGTEL.

PANGTEL shall perform its functions in a mariner consistent with -

(a) any Government Policy notified by the Minister under Section 36; and

(b) Papua New Guinea's obligations under any convention.
  1. MINISTER MAY NOTIFY PANGTEL OF POLICIES OF THE GOVERNMENT.

(1) The Minister may notify PANGTEL in writing of any Government policy.

(2) PANGTEL shall ensure that any Government Policy notified in accordance with Subsection (1) is carried out.

(3) Notwithstanding any other provision of this Act, the Minister may not notify PANGTEL of a Government Policy which is inconsistent with Section 55.

  1. CONSULTATION.

In performing its functions and exercising it powers, PANGTEL shall, where it is appropriate and practicable to do so, consult with -

(a) government, commercial, industrial, consumer and standards bodies and organizations (for example, carriers); and

(b) other relevant bodies and organizations.
  1. ADVISORY COMMITTEES.

(1) PANGTEL may, by writing, establish advisory committees to assist it in performing any of its functions (other than its functions under Section 84).

(2) An advisory committee consists of such persons as PANGTEL from time to time appoints to the committee.

(3) PANGTEL may give an advisory committee written directions as to -

(a) the way in which the committee is to carry out its functions; and

(b) procedures to be followed in relation to meetings.

(4) A member of an advisory committee is entitled to such remuneration as is determined by PANGTEL or as is prescribed.

Division 5. - Staff of PANGTEL.

  1. CHIEF EXECUTIVE.

(1) There shall be a Chief Executive of PANGTEL who -

(a) shall be appointed by notice in the National Gazette by the Head of State, acting on advice, given after considering recommendations by the Minister; and
(b) shall be appointed for a term not less than three years and not exceeding five years and is eligible for re-appointment; and
(c) shall be known by such designation as PANGTEL may determine; and
(d) shall be head of the staff of PANGTEL.

(2) The terms and conditions of appointment and services of the Chief Executive are as determined by the National Executive Council after consideration of recommendations by the Minister.

  1. QUALIFICATION OF CHIEF EXECUTIVE.

(1) A person shall not be appointed as the Chief Executive unless he appears to the Head of State, acting on advice, to be qualified for appointment because of his knowledge of, or experience in, one or more of the following fields:-

(a) industry;

(b) commerce;
(c) technology;
(d) consumer affairs;
(e) economics;
(f) law;
(g) public administration.

(2) Subject to Subsections (3) and (4), a person shall not be eligible to be appointed or to continue as the Chief Executive of PANGTEL where -

(a) directly or indirectly, as owner, shareholder, director, officer, partner or otherwise, he -

(b) he is an undischarged bankrupt; or

(c) he is convicted of a criminal offence which would disqualify him from becoming a director under the Companies Act (Chapter 146).

(3) A Chief Executive who, at the time of his appointment has an interest prohibited under Subsection (2)(a), shall dispose of it within three months of the appointment.

(4) The Chief Executive in whom any interest prohibited under Subsection (1) vests by will or succession for the Chief Executive's benefit shall, within three months from such vesting, absolutely dispose of the interest.

  1. FUNCTIONS, ETC., OF CHIEF EXECUTIVE.

(1) The Chief Executive shall -

(a) manage PANGTEL and shall, in relation to the management of PANGTEL, act in accordance with the policy and direction of the Board and this Act; and
(b) advise the Board on any matters concerning PANGTEL referred to him by the Board.

(2) The Chief Executive has such other functions as the Board from time to time determines.

(3) The Chief Executive may in writing, delegate to any officer of PANGTEL all of any of his powers and functions under this Act, except this power of delegation.

  1. STAFF.

(1) PANGTEL may employ such persons as are necessary or desirable for the efficient performance of the functions of PANGTEL under this Act.

(2) Subsection (3) applies to any person who transfers employment from any of -

(a) Telikom; or
(b) Post PNG;

(such person being referred to as "transferred employee").

(3) In respect of each transferred employee -

(a) the transferred employee shall be deemed to have accrued with PANGTEL entitlements to benefits equivalent to the benefits which he had accrued immediately prior to the date of transfer to employment by PANGTEL; and
(b) the transfer to employment shall not, and shall not be taken to, be a breach of any contract of any employment or interrupt the period of employment.

(4) The Chief Executive may -

(a) in consultation with the Board, appoint such persons to be the Senior Executives of PANGTEL as he thinks fit and necessary for the purposes of PANGTEL; and
(b) appoint such other persons as he thinks necessary for the purpose of PANGTEL.

(5) Subject to Subsection (7), each transferred employee or a person appointed under Subsection (4) shall be known by such designation as the Chief Executive may determine and on specific such terms and conditions as the Chief Executive determines.

(6) The Chief Executive, officers and employees appointed under this Division constitute the staff of PANGTEL.

(7) PANGTEL may determine the general terms and conditions of employment for its staff and employees.

(8) PANGTEL may make an arrangement with an authority, instrumentality or eligible Corporation of the State for the services of officers or employees of that authority, instrumentality or eligible Corporation to be made available for the purposes of PANGTEL on such terms and conditions as may be negotiated with such authority, instrumentality or eligible Corporation.

  1. ACCESS TO INFORMATION.

(1) Subject to Subsection (2), PANGTEL shall make available for public inspection information submitted to it in the course of the performance of its functions under this Act except information that is designated 'confidential' by the person who submits it.

(2) No member of or person employed by PANGTEL, shall knowingly disclose or knowingly allow to be disclosed information designated 'confidential' to any person in any manner that is calculated or likely to make it available for the use of any person who may benefit from such information or use such information to the detriment of the person to whose business or affairs the information relates, and the provisions of this subsection shall apply whether or not the person who discloses such information has ceased to be a member or employee of PANGTEL.

(3) Where information designated 'confidential' is submitted in the course of public hearing or in response to a direction by PANGTEL, PANGTEL may disclose or require its disclosure if it determines, after considering any representations from interested persons, that the disclosure is in the public interest.

  1. CHARGES FOR SERVICES PROVIDED BY PANGTEL.

(1) PANGTEL may levy charges or fees for any service rendered by it in the performance of its functions or the exercise of its powers under this Act.

(2) Without limiting the generality of Subsection (1) PANGTEL may levy charges of fees -

(a) for publications made generally available by PANGTEL; and
(b) for consultancy services performed by PANGTEL; and
(c) for arbitration of access terms pursuant to Section 84.

(3) Without limiting the generality of Subsection (1) PANGTEL may -

(a) make a scheme or schemes of determining rates of charges or fees for any service provided by it; or
(b) by regulations, prescribe the rate of charges and fees or the method of calculating charges or fees for services provided by PANGTEL.

(4) Charges and fees due to PANGTEL under this Act constitute a debt which may be recovered in a court of competent jurisdiction.

(5) For the avoidance of doubt, PANGTEL shall not be entitled to levy any charge or fee in relation to its licensing functions under this Act, except such charges or fees as are specified in this Act or otherwise levied in accordance with this Act.

PART V. - RESERVED RIGHTS.

Division 1. - Reserved Rights.

  1. RIGHTS TO RESERVE LINE LINKS AND ANCILLARY FACILITIES.

(1) Subject to this section and to Section 50 a person shall not install or maintain a reserved line link.

(2) A general carrier may install or maintain a reserved line link.

(3) A person may, together with or for or on behalf of, a person who is, or persons one of whom is, a general carrier, install or maintain a reserved line link between a place within Papua New Guinea and a place outside Papua New Guinea.

(4) A person shall not install or maintain a facility ancillary to a reserved line link unless the person is authorized by or under this Act to install or maintain that line link.

  1. SUPPLY OF TELECOMMUNICATIONS SERVICES BY SATELLITE BASED FACILITIES OR MICROWAVE FACILITIES.

A person other than a general carrier shall not supply a telecommunications service -

(a) between distinct places within Papua New Guinea; or
(b) between a place within Papua New Guinea and a place outside Papua New Guinea,

by the use of satellite based facilities or microwave facilities.

  1. PROVISION OF PUBLIC PAY PHONES.

(1) Subject to Subsection (2), a person other than a general carrier shall not supply, install or maintain a public pay phone within Papua New Guinea.

(2) Where permitted by Government Policy, a secondary public payphone licence holder may supply, install and maintain a public payphone within Papua New Guinea.

  1. SUPPLY OF PUBLIC MOBILE TELECOMMUNICATIONS SERVICES.

A person, other than a mobile carrier, shall not supply a public mobile telecommunications service -

(a) for carrying communications within distinct places within Papua New Guinea; or
(b) for carrying communications between Papua New Guinea and places outside Papua New Guinea.
  1. ACTION TO ENFORCE THIS PART.

(1) Where a person has engaged, or is proposing or is likely to engage in conduct that involves, or would involve, a contravention of Section 45, 46 or 47, a general carrier may apply to the National Court for relief.

(2) Where a person has engaged, or is proposing to engage in conduct that involves, or would involve contravention of Section 48, a mobile carrier may apply to the National Court for relief.

(3) The relief that may be granted under this section includes an injunction, and, at the plaintiff's option either damages or an account of profits.

(4) Section 194 applies to an application under this section.

Division 2. - Exceptions.

  1. ACTS DONE ON BEHALF OF A CARRIER.

(1) The provisions of Sections 47, 48 or 49 do not prevent a person from doing anything for or on behalf of a general carrier.

(2) The provisions of Section 48 do not prevent a person doing anything for or on behalf of a mobile carrier.

  1. LINE LINKS USED BY TRANSPORT AUTHORITIES.

Notwithstanding Section 45, the Director of Civil Aviation or the Departmental Head of the Department responsible for transport matter may install or maintain a reserved line link for the purpose of using it to carry communications necessary or desirable for the workings of aviation services or transport services for which the Director of Civil Aviation or the Departmental Head of the Department responsible for transport matters has responsibility.

  1. LINE LINKS USED BY BROADCASTER.

(1) Notwithstanding Sections 45 and 46, a broadcaster may install or maintain a reserved line link for the purpose of using it for or in relation to -

(a) the supply of radio or television broadcasting services by that or another broadcaster to members of the public; or
(b) the supply by the broadcaster or prescribed telecommunications services by means of facilities that include radio communications transmitter in relation to which the broadcaster holds a licence of a prescribed kind that is in force under the Radio Spectrum Act 1996.

(2) In this section -

"broadcaster" means the National Broadcasting Corporation established under the Broadcasting Corporation Act (Chapter 149).
  1. LINE LINKS FOR DEFENCE PURPOSES.

Notwithstanding Sections 45 and 46, a defence organization may install or maintain a reserved line link for the purpose of using it to carry communications necessary or desirable for defence purposes.

PART VI. - LICENSING AND GENERAL OBLIGATIONS OF LICENSEES.

Division 1. - Objectives of this Part

  1. OBJECTIVES.

The objectives of this Part are to help achieve the objectives of this Act and to implement Government Policy by -

(a) establishing a system for licensing of one or more general carriers, on the basis that it or they are to be -
(b) establishing a system for licensing one or more mobile carriers on the basis that it or they are to be the primary suppliers of public mobile telecommunications services; and
(c) creating exclusive rights for Telikom to provide telecommunications services between places within Papua New Guinea and between a place within Papua New Guinea and a place outside Papua New Guinea for a period of five years; and
(d) establishing a system for licensing of value added services where Government Policy provides for such licensing; and
(e) establishing a system for licensing the supply, installation, operation and maintenance of public payphones; and
(f) providing for a Code of Practice that -
(g) establishing a system for licensing the supply, installation, operation and maintenance of cable television services.
  1. EXCLUSIVE-RIGHTS.

(1) Notwithstanding any other provision of this Act, but subject to Subsection (3), Telikom is granted the exclusive right to supply telecommunications services for a period of five years from the date of coming into operation of this Act -

(a) between places within Papua New Guinea; and
(b) between a place within Papua New Guinea and a place outside Papua New Guinea.

(2) Without limiting the generality of Subsection (1), the exclusive right granted by Subsection (1) includes the right to supply -

(a) telecommunications services utilising line links; and
(b) public mobile services; and
(c) telecommunications services utilising satellite facilities; and
(d) telecommunications services utilising microwave facilities; and
(e) telecommunications services utilising public payphones; and
(f) value added services.

(3) For the avoidance of doubt, the exclusive right granted by Subsection (1) shall not include the exclusive right to provide, connect or supply customer equipment under Division XIII.1 or to perform customer cabling work under Division XIII.2.

(4) During the exclusivity period under Subsection (1), Telikom shall be entitled to supply telecommunications services under licences granted by PANGTEL pursuant to this Act and upon payment of such licence fees as may be determined by PANGTEL in accordance with Government Policy.

(5) After expiry of the exclusivity period under Subsection (1) Telikom shall be entitled to supply on a non-exclusive basis under licences granted by PANGTEL pursuant to this Act any telecommunications services which Telikom is supplying at the date of such expiry.

Division 2. - Grant of licence.

  1. APPLICATION FOR GENERAL TELECOMMUNICATIONS LICENCES AND PUBLIC MOBILE LICENCES AND CERTAIN OTHER LICENCES.

(1) A citizen or an eligible corporation may apply to PANGTEL, in a manner and form approved by PANGTEL, for a general telecommunications licence.

(2) A citizen or an eligible corporation may apply to PANGTEL, in a manner and form approved by PANGTEL, for a public mobile licence.

(3) A citizen or an eligible corporation may apply to PANGTEL for a public payphone licence where Government policy authorizes the issue of secondary public payphone licences, or secondary public payphone licence.

(4) Where Government Policy authorizes the issue of licences for value added services, a citizen or an eligible corporation may apply to PANGTEL for a value added service licence.

(5) PANGTEL may require an applicant for a licence under this section to give PANGTEL such further information in relation to the application as it thinks necessary.

  1. DECISION ON APPLICATION.

(1) On receipt of an application for a licence under Section 56, PANGTEL -

(a) may defer consideration of the application for as long as it thinks appropriate; and
(b) subject to Subsection (2), may, in its absolute discretion, either grant the licence or refuse the application.

(2) PANGTEL shall refuse the application where the applicant is not a citizen or an eligible corporation or where the grant of the licence applied for would not be in accordance with Government Policy.

  1. REVOCATION OF LICENCE.

(1) PANGTEL may by writing revoke a licence where -

(a) the holder of the licence so requests in writing; or
(b) in PANGTEL's opinion, the holder of the licence is about to cease, or has ceased, to be an eligible corporation; or
(c) the holder of the licence fails to comply with this Act or with a condition of the licence.

(2) Revocation of a licence does not affect an obligation of the holder of the licence to do an act where the obligation arose before the revocation, whether it arose under this Act or a condition of the licence or otherwise.

  1. TRANSFER OF LICENCE.

(1) A licence granted under Section 57 shall not be transferred without the approval of PANGTEL.

(2) The holder of a licence may apply to PANGTEL, in a manner and form approved by PANGTEL, to transfer the licence to another eligible corporation or to a citizen.

(3) An application under Subsection (2) shall be accompanied by an application under Section 56 by the other citizen or eligible corporation for a general telecommunications licence or a public mobile licence, as the case requires.

(4) PANGTEL may require an applicant under Subsection (2) or (3) to give PANGTEL such further information in relation to the application as it thinks necessary.

  1. DECISION ON APPLICATION.

(1) Where the holder of a licence applies under Section 59 to transfer the licence to another person or eligible corporation PANGTEL may, subject to Subsection (2), in PANGTEL's absolute discretion, either grant or refuse the application.

(2) PANGTEL shall refuse an application under Section 59 where the proposed transferee is not an eligible corporation or a citizen or the grant of the application would not be in accordance with Government Policy.

Division 3. - Licence conditions.

  1. CONDITIONS TO WHICH A LICENCE IS SUBJECT.

(1) A licence is subject to -

(a) a condition that the holder of the licence comply with this Act and the regulations; and

(b) a condition that the holder of the licence comply with any direction, determination or order that this Act provides for PANGTEL to give or make; and

(c) such conditions as are specified in a declaration made under Section 63; and

(d) such conditions as may be imposed in relation to the Rural Development Fund.

(2) A condition of a licence held by a carrier has effect subject to the provisions of a licence under the Radio Spectrum Act 1996 under which the carrier is authorized to do something.

(3) A condition of a licence shall not be inconsistent with this Act or with Government Policy.

  1. CONDITIONS.

(1) A licence may include any one or more of the following conditions: -

(a) that the holder complies with any direction by PANGTEL relating to the Rural Development obligations under Part XV;

(b) that the holder shall not supply specified telecommunications services except for carrying communications -

(i) within a specified geographical area; or
(ii) between a specified geographical area and places outside that area; or
(iii) by means of a technology specified in the licence;

(c) that the holder shall comply with any international convention or agreement to which Papua New Guinea, PANGTEL or the holder is a party;

(d) that the holder shall do certain things in connection with developing telecommunications in Papua New Guinea;

(e) that the extent of foreign ownership or control (whether direct or indirect) of the holder be limited;

(f) that the holder maintain quality standards and technical standards in connection with its supply of telecommunications services;

(g) that the holder is to deal with inquiries and complaints from the persons to whom it supplies telecommunications services in a specified manner;

(h) that the holder shall install and operate new telecommunications network infrastructure as provided in the condition;

(i) that the holder shall comply with technical standards determined by PANGTEL under Section 87

(j) that the holder shall operate only in Papua New Guinea;

(l) relating to any matter within PANGTEL's powers under this or any other Act.

(2) Nothing in this section limits the generality of anything else in it, or of Section 63.

  1. DECLARATION OF CONDITIONS OF LICENCES.

(1) PANGTEL may by writing declare that -

(a) all licences; or

(b) all general telecommunications licences; or

(c) all public mobile licences; or

(d) all value added service licences; or

(e) particular licences specified in the declaration,

are subject to conditions specified in the declaration with effect from the date specified in the declaration.

(2) PANGTEL may by writing vary or revoke a declaration in force under this section.

  1. NOTIFICATION AND DATE OF EFFECT OF INSTRUMENT UNDER SECTION 63.

PANGTEL shall cause a copy of any declaration made under Section 63 to be published promptly in the National Gazette and shall give a copy to any carrier affected by the declaration.

  1. PANGTEL TO CONSULT BEFORE CHANGING LICENCE CONDITIONS.

PANGTEL shall, before making a declaration under Section 63 in relation to a licence, consult with the holder of the licence and with each carrier that holds a licence which would be affected by the declaration.

Division 4. - International telecommunications operators.

  1. CODE OF PRACTICE RELATING TO DEALINGS WITH INTERNATIONAL TELECOMMUNICATIONS OPERATORS.

(1) With a view to preventing the misuse of market power by international telecommunications operators, PANGTEL may by writing determine a Code of Practice relating to dealings by holders of licences with such operators and with other persons.

(2) A carrier shall comply with the Code of Practice in force under this section.

(3) PANGTEL may give written directions to a holder of a licence as to how the holder shall comply with the Code of Practice.

(4) Where a provision of an agreement made by a holder of a licence is inconsistent with the Code of Practice, the provision is unenforceable.

PART VII. - PROTECTION OF COMMUNICATIONS.

  1. LICENSEE TO MAINTAIN CONFIDENTIALITY.

(1) Each licensee and its employees, agents and contractors shall treat as confidential any message and any information relating to a message which comes to their knowledge in the course of their duties.

(2) A person who, otherwise than in the proper course of his duties, makes use of, or records, the contents or substance of a message that comes to his knowledge or to which he had access, by reason of his position as an employee, agent or contractor of a licensee, is guilty of an offence.

(3) Nothing in this section prevents a licensee or any of its employees or agents from withholding any telecommunications message which he considers to be -

(a) indecent or abusive; or
(b) in contravention of this Act; or
(c) of a nature likely to endanger or compromise pubic order or national security.

(4) Where a message is withheld pursuant to Subsection (3), the licensee must forthwith refer it to PANGTEL for such directions as it may think fit to give.

PART VIII. - POWERS OF CARRIERS.

  1. LAND ACCESS CODE FOR CARRIERS.

PANGTEL shall by writing determine a Land Access Code that does one or more of the following:-

(a) sets out procedures that a carrier shall follow in exercising powers under this Division relating to land;
(b) sets out procedures that a carrier shall follow in complying with obligations under this Division relating to owners or occupiers of land;
(c) where there are two or more carriers, sets out procedures to be followed for consultation between carriers concerning the sharing of facilities where carriers propose to install or construct new facilities in the vicinity of existing facilities.
  1. LAND ACCESS CODE BINDING ON CARRIERS.

A carrier shall, when exercising a power in relation to land under this Division, comply with the Land Access Code under Section 68.

  1. POWERS TO INSPECT LAND ETC.,

A carrier may, for the purpose of determining whether any land is suitable for its purposes -

(a) after giving reasonable notice to the occupier or the owner of the land, enter on, and inspect, the land and any adjacent land; and
(b) do anything on the land or on any adjacent land that is necessary or desirable for that purpose, including, for example, making surveys, taking levels, sinking bores, taking samples, digging pits and examining the soil.
  1. TREES MAY BE CUT ETC.,

(1) Where any tree, undergrowth or vegetation on or over land owned or occupied by the State, a Public Authority or a Provincial Government or customary land, obstructs, or is likely to obstruct, the operation of a facility, a carrier may cut down or lop the tree or clear the undergrowth or vegetation.

(2) Before exercising its powers under Subsection (1) in relation to any land, a carrier shall give reasonable written notice of its intention to do so to the person or authority responsible for the care and management of the land.

(3) Where any tree, undergrowth or vegetation on or over any private land obstructs, or is likely to obstruct, the operation of a facility, a carrier may, by written notice served on the owner of the land, require the owner to cut down or lop the tree, or to clear and remove the undergrowth or vegetation, in the manner, and within the period, specified in the notice.

(4) Where the owner referred to in Subsection (3) does not comply with the requirement under that subsection within the specified period, the carrier may enter the land and cut down or lop the tree, or clear and remove the undergrowth or vegetation, in the manner specified in the notice.

  1. A CARRIER MAY REPLACE, REPAIR AND MAINTAIN FACILITIES ETC.,

(1) Subject to any conditions in its licence, a carrier may, at any time, alter, move, remove, replace or maintain -

(a) a facility constructed on, over or under any land; or
(b) a facility attached to a building or other structure.

(2) For the purpose of exercising powers under Subsection (1), a carrier may enter on, and occupy, land and may remove, or erect a gate in, any fence.

(3) Before removing, or erecting a gate in, a fence, a carrier shall take all reasonable steps to give written notice of its intention to do so to the owner of the land on which, or on the boundary of which, the fence is erected.

  1. POWER EXTENDS TO CARRIERS EMPLOYEES ETC.,

Where, under a provision of this Division, a carrier is empowered to enter on land, inspect land, occupy land or do anything else on, over or under land, the provision also empowers an employee of the carrier, a person acting for the carrier under a contract, or an employee of such a person, to do that thing.

  1. CARRIER TO DO AS LITTLE DAMAGE AS PRACTICABLE ETC.,

(1) In exercising its powers under this Division, a carrier shall take all reasonable steps to ensure that it causes as little detriment and inconvenience, and does as little damage, as is practicable.

(2) Where a person suffers financial loss or damage because of anything done by a carrier under Section 71, 72 or 73 in relation to any property owned by the person or in which the person has an interest, there is payable to the person by the carrier such reasonable amount of compensation as is agreed between them or, failing agreement, as is determined by a court of competent jurisdiction.

PART IX. - PROHIBITION OF DISCRIMINATION AND PROVISION OF TARIFFS.

Division 1. - Discrimination.

  1. DOMINANT CARRIER NOT TO DISCRIMINATE BETWEEN ACQUIRERS OF TELECOMMUNICATIONS SERVICES.

(1) A carrier that is in a position to dominate a market for a particular kind of telecommunications services shall not discriminate between persons who acquire in that market telecommunications services of that kind, in relation to -

(a) the charges for the services; or
(b) the terms and conditions on which the services are supplied.

(2) Subsection (1) does not apply in relation to telecommunications services supplied under the rural development provisions in Part XV.

(3) In this section "a carrier that is in a position to dominate a market" means a carrier who -

(a) by virtue of the terms of its licence; or
(b) by Government Policy; or
(c) by reason of its share of the market; or
(d) because of the availability to it of technology, infrastructure or capital,

has a substantial degree of power in the market for the supply of a telecommunications service.

  1. EXCEPTIONS.

(1) Section 75(1) does not apply where the discrimination makes only reasonable allowance for differences in the costs or likely costs of supplying services where the differences result from any of the following:-

(a) the different quantities in which the services are supplied;
(b) the different transmission capacity needed to supply the services;
(c) the different places from or to which the services are supplied;
(d) the different periods for which the services are supplied;
(e) the different performance characteristics at which the services are supplied;
(f) such other matters as are prescribed.

(2) Where a discrimination in relation to the charges for telecommunications services would make only reasonable allowance for differences in the other terms and conditions on which the services are supplied, Section 75 does not apply in relation to the discrimination in relation to the charges, or in relation to the differences in the other terms and conditions.

  1. ACTION FOR DISCRIMINATION.

(1) Where a carrier contravenes, or proposes to contravene Section 75 -

(a) a person who is, or would be, subjected to discrimination; or
(b) any other aggrieved person,

may apply to the National Court for relief.

(2) The relief that may be granted under Subsection (1) includes an injunction and damages.

(3) Section 194 applies to an application under Subsection (1).

Division 2. - Tariffs.

  1. TARIFFS.

(1) A carrier shall give to PANGTEL a written tariff of the carrier's charges for each telecommunications service supplied by the carrier, in a form approved by PANGTEL and in compliance with the requirements of this section.

(2) In respect of each telecommunication service, the tariff shall include the following details:-

(a) the term during which the tariff is to apply;
(b) the description of the telecommunications service;
(c) the amount of the charges payable for each telecommunications service;
(d) the quantity in which the service is supplied;
(e) the transmission capacity needed to supply the service;
(f) the performance characteristics for the service supplied;
(h) the terms and conditions on which the service is supplied;
(g) such other matter as PANGTEL may direct.

(3) Where requested by PANGTEL, a carrier shall supply to PANGTEL such further details relating to proposed tariff as PANGTEL considers necessary or desirable to enable PANGTEL to monitor compliance with this Act.

(4) PANGTEL may, by notice in writing to a carrier, disallow any tariff which does not comply with any provision of this Act or with Government Policy.

(5) A carrier shall not demand or receive payment of a charge for a telecommunications service which exceeds the charge payable under the tariff.

(6) Any tariff of a carrier shall be made available for inspection and for purchase at each of its business offices.

(7) The tariff shall contain sufficient information to be used to work out the nature and amounts of charges payable for the supply of basic carriage services in particular cases.

(8) The tariff shall be prepared in such a way that the charges will not contravene Section 78.

(9) This section does not apply to the supply of a telecommunications service under a registered access agreement.

  1. VARIATION AND REVOCATION OF TARIFF.

(1) Subject to this section, a carrier's tariff is in force for the term stated in the tariff under Section 78(2).

(2) A carrier may vary or revoke its tariff by writing given to PANGTEL with effect from a date not less than five business days after the date on which the notice is delivered to PANGTEL.

(3) A tariff shall not be varied so as to cease to comply with Section 75.

(4) In preparing a variation under this section a carrier shall have regard to its obligations under this Act and under the conditions of its licence.

  1. TERMS AND CONDITIONS IN TARIFF APPLY UNLESS EXCLUDED.

(1) Subject to any express provision of this or another Act, the terms and conditions on which a carrier supplies a telecommunications service to a person (including a person who is not authorized by the carrier to use the service) are -

(a) so far as the carrier and the person agree on the terms and conditions on which the service is supplied the agreed terms and conditions; and
(b) where the carrier and the person do not agree on terms and conditions but terms and conditions are set out in a tariff of the carrier that is in force and in which the service is included - the terms and conditions set out so far as they are applicable to the supply of the service.

(2) To avoid doubt, but without limiting Subsection (1), a reference in that subsection to terms and conditions includes a reference to terms and conditions about charges for a telecommunications service.

PART X. - NATIONAL NUMBERING PLAN.

  1. NATIONAL NUMBERING PLAN.

(1) PANGTEL shall, as soon as practicable, prepare and administer a national numbering plan for the numbering of telecommunications services in Papua New Guinea and for the use of numbers in connection with the supply of such services.

(2) The national numbering plan referred to in Subsection (1) shall among other things specify the numbers (if any) that have been allocated by PANGTEL to a carrier and to any other person.

(3) PANGTEL may consult with any carrier in relation to any proposed numbering plan under this section.

PART XI - ACCESS TO NETWORKS.

  1. RIGHT TO ACCESS.

(1) A carrier has the right to interconnect its facilities to a network of any other carrier -

(a) for the purpose of the other carrier carrying communications across the network under Subsection (2); and
(b) on such terms and conditions as the carriers agree on or, failing agreement, as PANGTEL determines under Section 84.

(2) Where a carrier's facilities are, or are to be, interconnected as authorized by Subsection (1) to a network of another carrier, the other carrier shall carry communications across the network -

(a) so far as is necessary or desirable for the purposes of the first-mentioned carrier supplying by means of those facilities -
(b) on such terms and conditions as the carriers agree on or, failing agreement, as PANGTEL determines under Section 84.
  1. PANGTEL'S ROLE IN NEGOTIATIONS OF ACCESS AGREEMENTS.

(1) Where two carriers propose to negotiate, or are negotiating, the terms and conditions of an access agreement, or a variation to an access agreement, either or both of them may request PANGTEL in writing to arrange for a representative of PANGTEL to attend the negotiations.

(2) PANGTEL shall comply with a request under Subsection (1) by arranging for a representative of PANGTEL to attend the negotiations.

  1. ARBITRATION BY PANGTEL OF ACCESS TERMS.

(1) Where two carriers cannot agree upon the terms and conditions of an access agreement or a variation to an access agreement either carrier or both carriers may by writing submit the matter to PANGTEL for arbitration under this section.

(2) PANGTEL shall comply with a submission for arbitration under Subsection (1) and shall promptly take all steps necessary to determine the matter submitted for arbitration.

(3) A determination by PANGTEL under this section shall -

(a) specify the facilities and the network concerned; and
(b) set out terms and conditions of the interconnection; and
(c) be consistent with this Act, with any charging principles determined under Section 86 and with Government Policy.

(4) The terms and conditions set out under Subsection (3)(b) shall relate only to such of the following as are appropriate in the particular case:-

(a) technical standards for interconnection;
(b) points of interconnection;
(c) supply of facilities for the purposes of interconnection or carriage;
(d) supply by the one carrier to the other of -
(e) charges payable for the interconnection or carriage, for the supply of such facilities or information, or for related matters;
(f) matter incidental to a matter of a kind referred to this subsection.

(5) PANGTEL may include in a carrier's licence any condition necessary or desirable to give effect to any determination made under this section and may, by notice in writing to a carrier, vary that carrier's licence by inserting such a condition.

  1. DETERMINATION UNDER SECTION 84 TAKEN TO BE AN ACCESS AGREEMENT.

A determination made under Section 87 because of an arbitration -

(a) is taken to be an access agreement between the carriers who were parties to the arbitration; and
(b) shall be registered by PANGTEL; and
(c) subject to compliance with this Act and with Government Policy, may be varied by these carriers, and enforced by each of them, as if it were a contract between them.
  1. CHARGING PRINCIPLES.

(1) The Minister may determine or may direct PANGTEL to determine, by notice in the National Gazette, principles that are to be applied in agreeing on or determining terms and conditions about charges payable by a specified carrier to another specified carrier for -

(a) interconnection of facilities to networks of the other carrier; or
(b) carriage of communications across the networks of the other carrier; or
(c) the supply of facilities for the purposes of such interconnection or carriage; or
(d) the grant of rights or interests, or the supply of goods or services; or
(e) matters incidental to any matter of a kind referred to in this subsection.

(2) Where the charging principles have been determined under Subsection (1), any access agreement agreed by carriers or determined by PANGTEL shall comply with the charging principles then in force.

(3) A carrier who agrees an access agreement with another carrier shall submit the access agreement to PANGTEL for registration.

(4) PANGTEL shall register an access agreement submitted under Subsection (3) where the access agreement -

(a) complies with any charging principles then in force; and
(b) complies with this Act; and
(c) complies with Government Policy,

but otherwise PANGTEL shall not register the access agreement.

PART XII - TECHNICAL REGULATION.

  1. DETERMINATION OF TECHNICAL STANDARDS.

(1) PANGTEL may, by notice in the National Gazette, determine technical standards relating to telecommunications networks, to customer equipment or to customer cabling that is connected to a telecommunications network.

(2) Subject to Subsection (3), PANGTEL may only determine a standard under Subsection (1) where it believes it necessary or desirable to do so in order to -

(a) protect the integrity of a telecommunications network or the safety of persons working on, or using services supplied by means of, a telecommunications network; and
(b) ensure the interoperability of customer equipment, or customer cabling, with a telecommunications network to which it is connected; or
(c) ensure that customer equipment, or customer cabling, connected to a telecommunications network complies with recognized international standards; or
(d) maintain or improve the end-to-end quality of telecommunications services; or
(e) reduce or limit interference to radiocommunications or to any uses or functions of devices; or
(f) establish an adequate level of immunity from electromagnetic disturbance.

(3) PANGTEL may consult with any carrier prior to determining a technical standard under this section.

PART XIII - CUSTOMER EQUIPMENT AND CABLING.

Division 1. - Permits for customer equipment.

  1. APPLICATION FOR PERMITS.

(1) A person may apply to PANGTEL in a form approved by PANGTEL for a permit to connect customer equipment, or a type of customer equipment, to a telecommunications network.

(2) An application under Subsection (1) shall -

(a) give a detailed description of the customer equipment, or type of customer equipment; and
(b) be accompanied by -
(c) be accompanied by payment of the prescribed fee.
  1. ISSUE OF NEW PERMITS.

Where an application has been made under Section 88, PANGTEL may, by notice in writing to the applicant, issue a permit for the connection of customer equipment or a type of customer equipment to the telecommunications network subject to such conditions as PANGTEL shall determine including, for example, one or both of the following:-

(a) requiring the customer equipment to be labelled in a manner specified by PANGTEL;
(b) requiring the customer equipment to be inspected by any carrier before being connected to a telecommunications network operated by that carrier.
  1. VARIATION OF PERMITS BY PANGTEL.

(1) PANGTEL may, by written notice to the holder of a permit, vary the permit.

(2) The power to vary the permit under Subsection (1) includes the power to -

(a) vary the conditions of the permit; or
(b) add further conditions; or
(c) revoke any of the conditions.

(3) The holder of a permit may apply in a form approved by PANGTEL to vary a permit under this section.

  1. ISSUE AND VARIATION OF PERMITS.

(1) PANGTEL shall not issue or vary a permit unless it is satisfied that -

(a) connection of the customer equipment specified in the permit to a telecommunications network in accordance with the conditions in the permit would comply with the technical standards determined by PANGTEL under Part XII; and
(b) the issue of a permit or its variation would not be contrary to Government Policy.

(2) Where PANGTEL decides not to issue a permit or not to vary a permit it shall give to the applicant written notice that the application is refused together with the reasons for refusal.

(3) Notice under Subsection (2) shall include a statement to the effect that the applicant may within 21 days of receiving the notice apply to PANGTEL for reconsideration of the refusal.

(4) In deciding whether it is satisfied as to whether connection of customer equipment to a telecommunications network would comply with technical standards determined under Part XII, PANGTEL may reach a conclusion contrary to any conclusion reached on that matter in a report, by an accredited test house, that accompanied the application for the permit concerned.

(5) Where PANGTEL issues or varies a permit, it shall include in the notice under Subsection (1) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to PANGTEL for reconsideration of the conditions included in the permit.

(6) Where PANGTEL decides not to issue a permit, it shall give to the applicant written notice that the application is refused, together with -

(a) its reasons for the refusal; and
(b) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to PANGTEL for reconsideration of the refusal.
  1. REGISTER OF CUSTOMER EQUIPMENT.

PANGTEL shall maintain a register of permits for the connection of customer equipment, or types of customer equipment, and shall ensure that such register is open to public inspection.

  1. FENCES RELATING TO CUSTOMER EQUIPMENT.

(1) A person, who knowingly or recklessly connects to a telecommunications network customer equipment in respect of which a permit under this part is not in force, is guilty of an offence.

Penalty: A fine not exceeding K15,000.00 or imprisonment for a term not exceeding 10 years or both.

(2) A person, who sells or supplies, or offers to sell or supply, to another customer equipment that the person knows or ought reasonably to know is customer equipment for which a permit under this part is not in force without first notifying the other person that there is no permit for the connection of the equipment to a telecommunications network, is guilty of an offence.

Penalty: A fine not exceeding K15, 000.00 or imprisonment for a term not exceeding 10 years or both.
  1. DISCONNECTION OF CUSTOMER EQUIPMENT FOR WHICH THERE IS NO PERMIT.

(1) Where -

(a) a person has under his control customer equipment connected to a telecommunications network; and
(b) there is no permit in force for connection of the customer equipment to a telecommunications network; and
(c) PANGTEL gives to the person a written notice stating that -

the person shall comply with notice.

(2) A person, who fails or refuses to comply with a notice under Subsection (1), is guilty of an offence.

Penalty: A fine not exceeding K15,000.00 or imprisonment for a term not exceeding 10 years or both.
  1. CANCELLATION OF PERMITS.

(1) PANGTEL may cancel a permit, by written notice given to the holder of the permit, where -

(a) PANGTEL is satisfied that the holder of a permit has contravened the conditions of the permit; or
(b) the cancellation is authorized by Government Policy.

(2) Where PANGTEL cancels a permit under Subsection (1), it shall include in the notice under that subsection -

(a) PANGTEL's reasons for the cancellation; and
(b) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to PANGTEL for reconsideration of the cancellation.
  1. REPRESENTATIONS CONCERNING CANCELLATION OF PERMITS.

(1) Before cancelling a permit under Section 95, PANGTEL -

(a) shall give to the holder of the permit; and
(b) may give to such other persons as PANGTEL considers to have an interest in the permit,

written notice -

(c) stating that it proposes to cancel the permit; and
(d) inviting each person to whom the notice is given to make representations to PANGTEL, within 21 days after receiving the notice, concerning the proposed cancellation.

(2) A person who receives a notice under Subsection (1) may, within 21 days after receiving the notice, make such representations to PANGTEL as he considers relevant.

(3) PANGTEL shall give due consideration to any representations made under Subsection (2).

(4) Where PANGTEL decides not to proceed with the cancellation of a permit, it shall give to the holder of the permit written notice to that effect.

(5) Failure to comply strictly with Subsection (1) does not affect the validity of the notice, or of a cancellation of a permit, where there is substantial compliance with the requirements of that subsection.

  1. TRANSFER OF PERMITS.

(1) The holder of a permit may, at any time, transfer the permit to another person.

(2) The transfer of a permit does not have effect before PANGTEL has been given written notice -

(a) stating that the permit has been transferred; and
(b) specifying the name and address of the person to whom the permit has been transferred.
  1. ACCREDITATION ETC., OF TEST HOUSES.

The regulations may prescribe -

(a) the accreditation of test houses by PANGTEL; and
(b) the testing of customer equipment by accredited test houses; and
(c) the removal of the accreditation of a test house; and
(d) the review of administrative decisions made in connection with the accreditation, or the removal of the accreditation, of test houses; and
(e) the payment of the appropriate fee for applications for the accreditation of test houses; and
(f) any matter related to a matter referred to Paragraph (a), (b), (c), (d) or (e).
  1. PANGTEL MAY LIMIT APPLICATION OF DIVISION IN RELATION TO CUSTOMER EQUIPMENT.

(1) PANGTEL may, by written notice in the National Gazette, declare that this Division, or specified provisions of it, do not apply in relation to specified classes of customer equipment.

(2) A notice under Subsection (1) may specify a class of customer equipment -

(a) by reference to the technical characteristics of the equipment; or
(b) by reference to the functions of the equipment.

(3) This Division has effect in accordance with a declaration in force under Subsection (1).

(4) PANGTEL may make a declaration under Subsection (1) on its own initiative or at the request of any person.

Division 2. - Licensing of cabling providers.

  1. APPLICATION FOR CABLING LICENCES.

(1) A natural person may apply to PANGTEL in a form approved by PANGTEL for a cabling licence.

(2) An application under Subsection (1) shall -

(a) give a detailed description of the applicants qualifications, knowledge and experience of cabling work; and
(b) be accompanied by payment of the prescribed fee.
  1. ISSUE OF CABLING LICENCES.

Where an application has been made under Section 100, PANGTEL may, by notice in writing to the applicant, issue a cabling licence subject to such conditions as PANGTEL shall determine including, for example, all or any of the following conditions:-

(a) relating to the geographic areas in which the licensee may perform cabling work;
(b) relating to the types of premises in or on which the licensees may perform cabling work;
(c) requiring cabling work which has been carried out by the licensee to be inspected by PANGTEL or by carriers.
  1. VARIATION OF CABLING LICENCES BY PANGTEL.

(1) PANGTEL may, by written notice to the holder of a cabling licence, vary the cabling licence.

(2) The power to vary under Subsection (1) includes the power to

(a) vary the conditions of the cabling licence; or
(b) add further conditions; or
(c) revoke any of the conditions.

(3) The holder of a cabling licence may apply in a form approved by PANGTEL to vary a cabling licence under this section.

  1. ISSUE AND VARIATION OF CABLING LICENCES.

(1) PANGTEL shall not issue or vary a cabling licence unless it is satisfied that -

(a) the licensee has the necessary qualifications, knowledge and experience to perform cabling work in accordance with the licence; and
(b) the issue of the licence or its variation would not be contrary to Government Policy.

(2) Where PANGTEL decides not to issue or not to vary a licence it shall give to the applicant written notice that the application is refused.

(3) Notice under Subsection (2) shall include PANGTEL's reasons for the refusal and a statement to the effect that the applicant may within 21 days of receiving the notice apply to PANGTEL for reconsideration of the refusal.

  1. REGISTER OF CABLING LICENCES.

PANGTEL shall maintain a register of cabling licences and shall ensure that such register is open to public inspection.

  1. OFFENCES RELATING TO UNLICENSED CABLING WORK

(1) A person other than a carrier or a licensee, who performs cabling work without a cabling licence, is guilty of an offence.

Penalty: A fine not exceeding K15,000.00 or imprisonment for a term not exceeding 10 years or both.

(2) A licensee, who knowingly or recklessly contravenes the conditions of his cabling licence, is guilty of an offence.

Penalty: A fine not exceeding K15,000.00 or imprisonment for a term not exceeding 10 years or both.
  1. DEEMED REFUSAL OF CABLING LICENCES.

Where, at the end of 30 days after an application for the issue of a cabling licence has been made under Section 100, PANGTEL has not issued the licence, PANGTEL is taken, for the purposes of Section 114 -

(a) to have decided, on the last of the 30 days, not to issue the licence; and
(b) to have informed the applicant accordingly on that day.
  1. REPRESENTATIONS CONCERNING VARIATION OF CABLING LICENCES.

(1) Before varying a cabling licence, PANGTEL shall give to the licensee a notice -

(a) setting out the text of the proposed variation; and
(b) inviting the licensee to make representations to PANGTEL, within 21 days after receiving the notice, concerning the proposed variation.

(2) The licensee may, within 21 days after receiving the notice under Subsection (1), make such representations to PANGTEL.

(3) PANGTEL shall give due consideration to any representations made under Subsection (2).

(4) Where PANGTEL decides not to proceed with the variation, it shall give to the licensee written notice to that effect.

(5) Failure to comply strictly with Subsection (1) does not affect the validity of the notice, or of a variation of a cabling licence, if the requirements of that subsection are substantially complied with.

  1. CANCELLATION OF CABLING LICENCES.

(1) Where PANGTEL is satisfied that a licensee has contravened the conditions of his cabling licence, PANGTEL may cancel the licence by written notice given to the licensee.

(2) Where PANGTEL cancels a cabling licence under Subsection (1), it shall include in the notice under that subsection -

(a) PANGTEL's reasons for the cancellation; and
(b) a statement to the effect that the licensee may, within 21 days after receiving the notice, apply to PANGTEL for reconsideration of the cancellation.

(3) The cancellation of a cabling licence has effect on and from the day on which notice of the cancellation is given to the licensee.

  1. REPRESENTATIONS CONCERNING CANCELLATION OF CABLING LICENCE.

(1) Before cancelling a cabling licence under Section 108, PANGTEL shall give to the licensee a written notice -

(a) stating that it proposes to cancel the licence; and
(b) inviting the licensee to make representations to PANGTEL, within 21 days after receiving notice, concerning the proposed cancellation.

(2) The licensee may, within 21 days after receiving the notice under Subsection (1), make such representations to PANGTEL.

(3) PANGTEL shall give due consideration to any representations made under Subsection (2).

(4) Where PANGTEL decides not to proceed with the cancellation, it shall give to the licensee written notice to that effect.

(5) Failure to comply strictly with Subsection (1) does not affect the validity of the notice, or of a cancellation of a cabling licence, where the requirements of that subsection are substantially complied with.

  1. SURRENDER OF CABLING LICENCES.

A licensee may, at any time, surrender his cabling licence by giving PANGTEL written notice that it is surrendered and returning the licence to PANGTEL.

  1. PANGTEL MAY LIMIT APPLICATION OF DIVISION IN RELATION TO CUSTOMER CABLING.

(1) PANGTEL may, by written notice in the National Gazette, declare that this Division, or specified provisions of it, do not apply in relation to specified kinds of customer cabling.

(2) A notice under Subsection (1) may specify a kind of customer cabling -

(a) by reference to the technical characteristics of the cabling; or
(b) by reference to the functions of the cabling.

(3) This Division has effect in accordance with a notice in force under Subsection (1).

(4) PANGTEL may make a declaration under Subsection (1) on its own initiative or at the request of any person.

Division 3. - Connection of customer equipment and customer cabling to telecommunications networks.

  1. DISCONNECTION ETC., OF CUSTOMER EQUIPMENT OR CUSTOMER CABLING.

(1) A carrier may cease supplying a service to a person by means of a telecommunications network operated by the carrier where, through the use of the service, there is connected to the network customer equipment or customer cabling that is a threat to -

(a) the safety or proper functioning of the network; or
(b) the safety of any person.

(2) A carrier may refuse to supply to a person a service of a kind normally provided by the carrier by means of a telecommunications network operated by the carrier where the carrier is satisfied that the person intends, through the use of the service, to connect or have connected to the network customer equipment or customer cabling that is a threat to -

(a) the safety or proper functioning of the network; or
(b) the safety of any person.

(3) Where a carrier stops providing a service to a person under Subsection (1) or refuses to provide a service to a person under Subsection (2), the person may apply to PANGTEL for an order under Subsection (6).

(4) PANGTEL shall, by notice in writing; in respect of an application under Subsection (3) -

(a) inform the carrier concerned of the making of the application; and
(b) invite the carrier to make representations to PANGTEL, within 7 days after receiving the notice, as to whether an order should be made under Subsection (6).

(5) In deciding whether to make an order under Subsection (6), PANGTEL shall give due consideration to any representations made under Subsection (4).

(6) Where, on an application having been made under Subsection (3), PANGTEL is satisfied that the connection to a telecommunications network, operated by the carrier concerned, of the customer equipment or customer cabling to which the application relates is not a threat to -

(a) the safety or proper functions of the network; or
(b) the safety of any person;

PANGTEL shall, by written notice -

(c) order the carrier to supply the service that is necessary for connection of the customer equipment or customer cabling to the network; and
(d) inform the applicant that the order has been made.

(7) Where PANGTEL decides not to make an order under Subsection (6), it shall give to the applicant written notice that the application is refused, together with -

(a) its reasons for the refusal; and
(b) a statement to the effect that the person may, within 21 days after receiving the notice, apply to PANGTEL for reconsideration of the refusal.

(8) Where, at the end of 30 days after an application for the making of an order under Subsection (6) has been made, PANGTEL has not made such an order, PANGTEL is taken, for the purposes of Section 114 -

(a) to have decided, on the last of the 30 days, not to make such an order; and
(b) to have informed the person accordingly on that day.
  1. ACTION FOR UNAUTHORIZED CONNECTION TO TELECOMMUNICATIONS NETWORK OF CUSTOMER EQUIPMENT OR CUSTOMER CABLING.

(1) Where -

(a) a person -
(b) as a result of -
damage is caused to the network, or the carrier operating the network suffers a loss or incurs a liability,

the carrier operating the network may apply to the National Court for relief.

(2) The relief that may be granted under Subsection (1) includes an injunction and, at the option of the carrier, either damages or an account of profits.

(3) Section 194 applies to an application under Subsection (1).

Division 5. - Miscellaneous.

  1. RECONSIDERATION OF DECISIONS.

(1) An application may be made to PANGTEL for reconsideration of a decision described in Column 1 of the following table:-

TABLE.

ITEM
NO.
COLUMN 1
DECISION
COLUMN 2
APPLICANT
1
The inclusion, under Section 91, of conditions in a permit.
The person who applied for the permit.
2
A refusal to issue a permit under Section 91.
The person who applied for the permit.
3
A decision to vary a permit under Section 90.
The holder of the permit.
4
A decision not to vary a permit where an application for variation has been made under Section 91(2).
The person who applied for the variation.
5
A decision to cancel a permit under Section 95.
The holder of the permit.
6
The inclusion, under Section 101 of conditions in a cabling licence.
The person who applied for the licence.
7
A refusal to issue a cabling under Section 103.
The person who applied for the licence.
8
A decision to vary a cabling licence under Section 102.
The licensee.
9
A decision not to vary a cabling licence where an application for variation has been made under Section 102(3).
The person who applied for the variation.
10
A decision to cancel a cabling licence under Section 108.
The licensee.
11
A decision refusing an application for an order to be made under Section 113.
The person who applied for the order under Section 113(3).

(2) An application for reconsideration of a decision described in Column 1 of an item in the table in Subsection (1) may be made by a person described in Column 2 of the same item (in this section called "the applicant")

(3) An application shall be made within -

(a) 21 days after the applicant is informed of the decision concerned; or
(b) where, as a result of a request made by the applicant within 21 days after being informed of the decision, PANGTEL extends the period within which an application for reconsideration of the decision may be made the extended period granted by PANGTEL for making the application.

(4) An application under Subsection (3) shall be in the form approved by PANGTEL.

(5) The approved form of application under Subsection (3) may provide for verification by statutory declarations of statements in applications.

(6) PANGTEL shall, in reconsidering the decision concerned, give due consideration to any representations made in relation to the application.

(7) Where an application for reconsideration is made, PANGTEL shall reconsider the decision to which the application relates and may -

(a) affirm the decision; or
(b) (where applicable) vary the decision; or
(c) revoke the decision; or
(d) (where applicable) revoke the decision and substitute a fresh decision.

(8) PANGTEL's decision on reconsideration of a decision has effect as if it had been made under the provision under which the original decision was made.

(9) PANGTEL shall not, under Subsection (7), vary the decision, or revoke the decision and substitute a fresh decision, in such a way that the decision as varied, or as substituted, could not have been made under the revision under which the original decision was made.

(10) PANGTEL shall give to the applicant written notice stating its decision on the reconsideration, together with a statement of its reasons for its decision.

  1. EFFECT ON OPERATION OF OTHER LAWS.

The fact that -

(a) a permit is in force for the connection of customer equipment to telecommunications network; or
(b) cabling work has been performed by a licensee;

does not affect the operation of any law that prohibits or regulates the sale, installation, maintenance, use or disposal of the customer equipment or customer cabling, as the case may be.

  1. EVIDENCE.

(1) A certificate issued by PANGTEL stating any matter in relation to customer equipment, customer cabling or a permit or cabling licence is prima facie evidence of the matter.

(2) Without limiting Subsection (1), the matters that may be certified under that subsection include -

(a) whether there is in force a permit for the connection to a telecommunications network of particular customer equipment, or customer equipment of the same type; or
(b) whether a person is a licensee; or
(c) whether the performance of particular cabling work contravenes conditions included in a particular cabling licence.

(3) A document purporting to be a certificate under Subsection (1) shall, unless the contrary is established, be taken to be a certificate and to have been properly given.

PART XIV. - LICENSING OF CABLE TELEVISION SERVICE.

Division 1. - Licensing of cable television service.

  1. APPLICATION FOR CABLE TELEVISION SERVICE LICENCE.

(1) A person may, apply to PANGTEL in a form approved by PANGTEL for a cable television service licence.

(2) The application shall include -

(a) a detailed description of the applicant's qualifications including his technical expertise and financial standing and the financial commitment proposed for the implementation of the cable television service, the experience of cable television systems and services operations; and
(b) detailed explanatory diagrams and supporting text describing the proposed cable television system and service and the proposed location and geographical coverage that the application proposes; and
(c) payment of the prescribed fee.
  1. ISSUE OF CABLE TELEVISION SERVICE LICENCES.

Where an application has been made under Section 117, PANGTEL may, by notice in writing to the applicant, issue a cable television service licence subject to such conditions as PANGTEL shall determine including, for example, conditions -

(a) relating to the geographic area covered by the cable television service; and
(b) relating to the types of premises in or on which the licensee may install, operate or maintain the cable television system; and
(c) requiring the cable television system which has been installed by the licensee to be inspected by PANGTEL or its duly authorised officers or agents whenever PANGTEL deem it necessary; and
(d) the structure of the licence fees payable as prescribed.
  1. VARIATION OF CABLE TELEVISION SERVICE LICENCE BY PANGTEL.

(1) PANGTEL may, by written notice to the holder of a cable television service licence, vary the said licence.

(2) The power to vary under Subsection (1) includes the power to -

(a) vary the conditions of the licence; or
(b) add further conditions; or
(c) revoke any of the conditions.

(3) The holder of a cable television service licence may apply in a form approved by PANGTEL, to vary such licence under this section.

  1. ISSUE AND VARIATION OF CABLE TELEVISION SERVICE LICENCE.

(1) PANGTEL shall issue or vary a cable television service licence only after it is satisfied that -

(a) the licensee has the necessary qualifications, knowledge and experience and financial strength to perform the work in accordance with the licence; and
(b) the issue of the licence or its variation would not be contrary to Government Policy.

(2) Where PANGTEL decides not to issue or vary a licence it shall give to the applicant written notice that the application is refused and such notice shall include PANGTEL's reasons for the refusal and a statement to the effect that the applicant may within 30 days of receiving the notice apply to PANGTEL for reconsideration of the refusal.

  1. REGISTER OF CABLE TELEVISION SERVICE LICENCES.

PANGTEL shall maintain a register of cable television service licences and shall ensure that such register is open to public inspection.

  1. OFFENCES RELATING TO UNLICENCED TELEVISION CABLE SERVICES.

(1) A person, who knowingly or recklessly performs, erects, or operates a cable television system, for the provision of cable television services, whether on his own behalf or on behalf of a third party, without a licence issued by PANGTEL, is guilty of an offence.

Penalty:

(2) A licensee, who knowingly or recklessly contravenes the conditions of his licence, is guilty of an offence.

Penalty:
  1. DEEMED REFUSAL OF CABLE TELEVISION SERVICE LICENCES.

Where, at the end of 30 days after an application for the issue of a licence has been made under Section 117, PANGTEL has not issued the licence, PANGTEL is taken, for the purposes of Section 120 -

(a) to have decided, on the last of the 30 days, not to issue the licence; and
(b) to have informed the applicant accordingly on that day.
  1. REPRESENTATIONS CONCERNING VARIATION OF CABLE TELEVISION SYSTEM LICENCES.

(1) Before varying a cable television service licence, PANGTEL shall give to the licensee a notice -

(a) setting out the text of the proposed variation; and
(b) inviting the licensee to make representations to PANGTEL, within 21 days after receiving the notice, concerning the proposed variation.

(2) The licensee may, within 21 days after receiving the notice, make such representations to PANGTEL.

(3) PANGTEL shall give due consideration to any representation so made.

(4) Failure to comply strictly with Subsection (1) does not affect the validity of the notice, or of a variation of a cable television service licence, where requirements of that subsection are substantially complied with.

  1. REPRESENTATIONS PRIOR TO CANCELLATION OF CABLE TELEVISION SERVICE LICENCE.

(1) Before canceling a licence, PANGTEL shall give to the licensee a written notice -

(a) stating that it proposes to cancel the licence; and
(b) inviting the licensee to make representations to PANGTEL, within 21 days after receiving the notice, concerning the proposed cancellation.

(2) The licensee may, within 21 days after receiving the notice, make such representations to PANGTEL.

(3) PANGTEL shall give due consideration to any representations so made.

(4) Where PANGTEL decides not to proceed with the cancellation, it shall give to the licensee written notice to that effect.

(5) Failure to comply strictly with Subsection (1) does not affect the validity of the notice, or of a cancellation of a cable television service licence, if the requirements of that subsection are substantially complied with.

  1. CANCELLATION OF CABLE TELEVISION SERVICE SYSTEM LICENCES.

(1) Where PANGTEL is satisfied that a licensee has contravened the conditions of his licence, PANGTEL may cancel the licence by written notice given to the licensee.

(2) Where PANGTEL cancels a licence, it shall include in the notice under Subsection (1) -

(a) PANGTEL's reasons for the cancellation; and
(b) a statement to the effect that the licensee may, within 21 days after receiving the notice, apply to PANGTEL for reconsideration of the cancellation.

(3) The cancellation of a licence has effect on and from the day on which notice of the cancellation is given to the licensee.

  1. SURRENDER OF CABLE TELEVISION SERVICE LICENCES.

A licensee may, at any time, surrender his licence by giving PANGTEL written notice that he is surrendering his licence and by returning the licence to PANGTEL.

  1. DIFFICULTIES WITH PROVISIONS OF THIS PART.

Where a difficulty arises in respect of the provisions of this Part, the Head of State, acting on advice, may by regulation -

(a) make such modifications to those provisions as may appear necessary for preventing anomalies; and
(b) make such incidental, consequential and supplementary provisions as may be necessary for the purpose of giving full effect to the provisions of this Part,

and any such modifications or provisions made by the Head of State, acting on advice, have, and shall be deemed always to have had, the same force and effect as if they had been enacted by way of an amendment to this Part, and on publication of the Regulation in the National Gazette, this Part shall be amended accordingly.

PART XV. - RURAL DEVELOPMENT OBLIGATIONS.

Division 1. - Preliminary.

  1. DECLARATIONS OF POLICY.

(1) It is the Parliament's intention -

(a) that all people in Papua New Guinea will have reasonable access, as far as practicable, to standard telephone services; and
(b) that the rural development obligations described in Section 130 shall be fulfilled as efficiently and economically as practicable.

(2) This part provides for a policy to be made for the fulfilment of rural development obligations and the compensation of carriers for work done in relation to rural development obligations, whether by payment, adjustment of rights or obligations, or otherwise.

  1. RURAL DEVELOPMENT OBLIGATIONS.

(1) The rural development obligations are the obligations -

(a) to ensure that the standard telephone service becomes reasonably accessible to all people in Papua New Guinea, wherever they reside or carry on business; and
(b) to supply the standard telephone service to people in Papua New Guinea.

(2) PANGTEL may determine that it is part of the rural development obligations to supply, install and maintain payphones at specified locations in Papua New Guinea.

(3) A determination under Subsection (2) shall be made by notice published in the National Gazette.

Division 2. - Determination of Rural Development Policy.

  1. GOVERNMENT POLICY DIRECTIONS ON RURAL DEVELOPMENT OBLIGATIONS.

The Minister shall, after consultation with PANGTEL, give to PANGTEL such direction by way of Government Policy in relation to the rural development obligations as the Minister consider fit which may include, without limitation -

(a) specifying the areas to which the rural development obligations will apply in each financial year; and
(b) specifying principles by which the carriers recover the cost of carrying out the rural development obligations whether by payment, adjustment of rights or obligations, or otherwise; and
(c) specifying a method for collecting a rural development levy (if any); and
(d) specifying a method of distribution of the Rural Development Fund (if any), to participating carriers; and
(e) specifying the information to be supplied by participating carriers about expenditure relating to the rural development obligations; and
(f) setting out the principles for recovery by participating carriers of costs incurred in fulfilling the rural development obligations; and
(g) specifying procedures for appeals from decisions by PANGTEL relating to the recovery of costs incurred by carriers in carrying out the rural development obligations.

Division 3. - PANGTEL to determine procedure.

  1. PANGTEL TO DETERMINE PROCEDURES.

As soon as practicable after receipt of a rural development policy direction made in accordance with Section 131, PANGTEL shall determine procedures for the implementation of the policy direction.

  1. VARIATION OF PROCEDURES.

(1) PANGTEL may vary procedures determined under Section 132 from time to time.

(2) Any variation of procedures under Subsection (1) shall be consistent with any direction made under Section 131 in effect at the date on which the variation is made.

  1. AVAILABILITY OF PROCEDURES.

PANGTEL shall make available at its offices, and at such other places as PANGTEL shall determine, copies of the procedures determined under Section 132, and of any variations made under Section 133, at such cost as is determined by PANGTEL.

  1. PANGTEL MAY DECLARE UNIVERSAL SERVICE CARRIER AND RURAL DEVELOPMENT SERVICE CARRIERS.

(1) PANGTEL may by writing declare a carrier to be universal service carrier for Papua New Guinea for such period as is specified in the declaration.

(2) PANGTEL may by writing declare a carrier to be rural development service carrier for a specified service area for such period as is specified in the declaration.

(3) PANGTEL shall exercise its powers under this section in such a way that -

(a) at any particular time, there is only one declaration in force under Subsection (1); and
(b) no service area in relation to which a declaration is in force under Subsection (2) overlaps (either wholly or in part) with another such area.
  1. EFFECT OF DECLARATION: MEANING OF "UNIVERSAL SERVICE CARRIER" AND "RURAL DEVELOPMENT SERVICE CARRIER."

(1) The carrier in relation to which a declaration is in force under Section 135(1) is the universal service carrier for Papua New Guinea, except for each service area in relation to which a declaration is in force under Section 135(2).

(2) A carrier in relation to which a declaration is in force under Section 135(2) in relation to a specified service area is the rural development service carrier for that area.

  1. PRESCRIBED CARRIER OBLIGATION OF UNIVERSAL SERVICE CARRIER.

(1) For so long as a carrier is the universal service carrier declared under Section 135(1), a general telecommunications licence or public mobile licence held by the carrier is subject to the condition that the carrier shall fulfil the universal service obligation specified in the declaration.

(2) For so long as a carrier is a rural development service carrier declared under Section 135(2) a general telecommunications licence or a public mobile licence held by the carrier is subject to the condition that the carrier shall fulfil rural development obligations for the service area specified in the declaration.

(3) The conditions for which Subsections (1) and (2) respectively provide are prescribed carrier obligations of the carrier that holds the licence.

  1. PANGTEL MUST PROPOSE SERVICE AREAS FOR DECLARATION AS FOR EACH YEAR.

(1) Within the first 90 days of each financial year PANGTEL shall give to each universal service carrier a written notice specifying the service areas for which the carrier is the universal service carrier for that financial year.

(2) PANGTEL may consult with each universal service carrier prior to giving a notice under Subsection (1).

(3) Each notice under Subsection (1) shall be published in the National Gazette.

(4) Failure to comply with Subsection (3) shall not affect the validity of any notice given under Subsection (1).

Division 4. - Assessment of liability for levy and entitlement to distribution.

  1. PANGTEL TO DETERMINE ENTITLEMENTS.

(1) PANGTEL shall in each financial year determine the entitlement of participating carriers to a distribution from the Fund for that year in accordance with principles of recovery by participating carriers in the direction by the Minister made under Section 131.

(2) PANGTEL shall notify in writing the participating carriers of the entitlements determined by PANGTEL under Subsection (1).

(3) A participating carrier shall be entitled to appeal against its entitlement notified to it under Subsection (2) within 30 days of the date of notification, and the appeal shall be determined in accordance with the procedures for appeal in the direction by the Minister made under Section 131.

  1. ASSESSMENTS AND COLLECTION OF LEVY PAYMENTS.

(1) In each financial year PANGTEL shall publish in the National Gazette the rates of contributions assessed by PANGTEL to be payable for that year for each class of persons liable to pay the rural development levy in accordance with the direction by the Minister made under Section 131.

(2) In each financial year PANGTEL shall collect or arrange for the collection of the rural development levy from each person liable to pay the rural development levy in accordance with the direction by the Minister under Section 131.

(3) Rural development levy that is due and payable but has not been paid may be recovered in a court of competent jurisdiction as a debt due to the State.

Division 5. - Disclosure by PANGTEL of information about the basis and methods of an assessment.

  1. PUBLIC MAY REQUEST INFORMATION.

(1) A person may request PANGTEL to make available to the person specified, information or documents on the basis of which PANGTEL has made its assessment under Section 140(1) for a financial year.

(2) Subject to Subsection (3), PANGTEL shall comply with a request as provided in Subsection (1).

(3) PANGTEL shall not make available under this section -

(a) information (other than information prescribed for the purposes of this paragraph): -
(b) information prescribed for the purposes of this paragraph; or
(c) so much of a document as sets out information of a kind referred to in Paragraph (a) or (b).
  1. CARRIER MAY REQUEST INFORMATION THAT IS UNAVAILABLE UNDER SECTION 141.

(1) A carrier may request PANGTEL to make available to it specified information or documents of a kind referred to in Section 141(1) that Section 141(3) prevents PANGTEL from making available to the carrier under Section 141.

(2) Subject to Subsection (3), PANGTEL shall comply with a request as provided for in Subsection (1).

(3) PANGTEL shall not, under this section, make available to a carrier (in this section called the "first carrier") information, or so much of a document as sets out information -

(a) that was obtained from, or relates to, another carrier; and
(b) the making available of which to the first carrier can reasonably be expected to cause substantial damage to the other carrier's commercial or other interests;

unless PANGTEL is satisfied -

(c) that the information could be obtained by the first carrier lawfully, and without the other carrier's consent, from a source other than PANGTEL; or
(d) that -
  1. HOW PANGTEL TO COMPLY WITH A REQUEST.

(1) PANGTEL may comply with a request by a person under Section 141 or 142 by -

(a) communicating information to the person in writing or in some other form; or
(b) making documents available for the inspection by the person or by an employee, agent or professional adviser of the person; or
(c) giving to the person copies of, extracts from, or summaries of, documents.

(2) In this section "document" includes a part of a document.

Division 6. - Distribution of Fund.

  1. RURAL DEVELOPMENT FUND.

There shall be established for the purposes of this Part a trust fund to be called the Rural Development Fund administered by PANGTEL.

  1. PAYMENTS INTO FUND.

The Fund shall be held in a trust account to be known as the Rural Development Fund Trust Account and there shall be paid into the Fund -

(a) amounts of levy paid under this Part; and
(b) money appropriated by law for the Fund's purposes; and
(c) interest from the investment of money in the Fund; and
(d) overpaid amounts of levy under this Part.
  1. PURPOSES OF FUND.

The purposes of the Fund are -

(a) making payments under Section 147; and
(b) refunding any overpaid amounts of levy; and
(c) refunding any other amounts paid into the Fund in error; and
(d) funding PANGTEL for -
  1. LEVY DISTRIBUTION TO PARTICIPATING CARRIER.

Where all or part of an entitlement granted to a participating carrier has not been paid by the end of the financial year, the amount payable shall, subject to Section 148, be paid to the participating carrier out of the Fund within 60 days of the end of the financial year.

  1. LEVY NOT TO BE DISTRIBUTED UNTIL PAID.

No amount is payable under Section 138 in relation to a financial year unless -

(a) PANGTEL has published the assessment under Section 140(1) for that financial year; and
(b) there are sufficient monies in the Fund for the payment of monies payable to the participating carrier.

PART XVI. - PUBLIC INQUIRIES.

  1. WHEN INQUIRY MAY HELD.

Where PANGTEL considers that it is appropriate and practicable to hold a public inquiry under this Part into any matter relating to the performance or exercise of any of PANGTEL's functions and powers, PANGTEL may hold such an inquiry into that matter.

  1. INFORMING THE PUBLIC ABOUT AN INQUIRY.

(1) Where PANGTEL intends to hold a public inquiry, it shall publish, in whatever ways it thinks appropriate, notice of -

(a) the fact that it is holding the inquiry; and
(b) the period during which the inquiry is to be held; and
(c) the nature of the matter to which the inquiry relates; and
(d) the period within which, and the form in which, members of the public may make submissions to PANGTEL about the matter; and
(e) the matters that PANGTEL would like such submissions to deal with.

(2) PANGTEL need not publish at the same time or in the same way notice of all the matters referred to in Subsection (1).

  1. DISCUSSION PAPER.

(1) As soon as practicable after deciding to hold a public inquiry under Section 141 into any matter, PANGTEL shall cause to be prepared a discussion paper that -

(a) identifies the issues that, in PANGTEL's opinion, are relevant to that matter; and
(b) sets out such background material about, and discussion of, those issues as PANGTEL thinks appropriate.

(2) PANGTEL shall ensure that copies of the discussion paper under Subsection (1) are available for purchase, at a reasonable price, at PANGTEL's office and at such other places as PANGTEL may determine.

  1. WRITTEN SUBMISSIONS; PROTECTION FROM CIVIL ACTIONS.

(1) PANGTEL shall provide a reasonable opportunity for any member of the public to make a written submission to PANGTEL about the matter into which a public inquiry is to be held.

(2) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of the making in good faith of a statement, or the giving in good faith of a document or information, to PANGTEL in connection with a public inquiry under this Part, whether or not the statement is made, or the document or information is given, in connection with a written submission or a public hearing.

  1. PUBLIC HEARINGS.

(1) PANGTEL may hold public hearings for any purposes of a public inquiry including, without limiting the foregoing generality, purposes -

(a) in order to receive submissions about the matter to which the inquiry relates; or
(b) in order to provide a forum for public discussion of issues relevant to that matter.

(2) At a public hearing, PANGTEL may be constituted by a member or members, or person or persons determined in writing by the Chairman for the purposes of that hearing.

(3) The Chairman is to preside at all public hearings at which he or she is present.

(4) Where the Chairman is not present at a public hearing, the member or the person specified in an instrument under Subsection (2), as the member or the person who is to preside at the hearing, is to preside.

(5) PANGTEL may regulate the conduct of the proceedings at a public hearing as it thinks appropriate.

  1. HEARINGS IN CAMERA.

A hearing or a part of a hearing before PANGTEL may, at the request of any interested person, be held in camera where that person establishes to the satisfaction of PANGTEL, or PANGTEL determines, that the circumstances of the case so require.

PART XVII. - INVESTIGATIONS.

  1. MATTERS PANGTEL MAY INVESTIGATE.

PANGTEL may investigate, as provided by this Part –

(a) a contravention of Division IX.1 or 2; or
(b) a contravention of a condition of a licence; or
(c) the supply of, or a failure to supply, telecommunications services; or
(d) a contravention of the Code of Practice in force under Section 66; or
(e) the performance of, or supervision of the performance of, or failure to perform or supervise the performance of cabling work.
  1. COMPLAINTS.

(1) A person may complain to PANGTEL about a matter of a kind referred to in Section 146.

(2) A complaint under Subsection (1) shall be in writing and shall specify, as the respondent in respect of the complaint, the person against whom the complaint is made.

  1. INVESTIGATIONS.

(1) PANGTEL may investigate a matter of a kind referred to in Section 155 where -

(a) a complaint is made under Section 156; or
(b) PANGTEL thinks that it is desirable to investigate the matter.

(2) PANGTEL shall not conduct an investigation under Subsection (1) where it thinks that the subject matter of the investigation would not be a matter relevant to the performance of any of its functions.


(3) PANGTEL shall investigate -

(a) a matter of a kind referred to in Section 155; or
(b) any other matter concerning telecommunications services or the telecommunications industry;

where, the Minister requests PANGTEL so to investigate.

  1. PRELIMINARY INQUIRIES.

Where a complaint has been made to PANGTEL under Section 156, PANGTEL may make inquiries of the respondent for the purposes of determining -

(a) whether PANGTEL has power to investigate the matter to which the complaint relates; or
(b) whether PANGTEL should, in its direction, investigate the matter.
  1. CONDUCT OF INVESTIGATIONS.

(1) Before commencing an investigation of a matter to which a complaint relates, PANGTEL shall inform the respondent that the matter is to be investigated.

(2) An investigation under this Part shall be conducted in such manner as PANGTEL thinks fit.

(3) PANGTEL may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as it thinks fit.

(4) Subject to Subsection (5), it is not necessary for a complainant or a respondent to be afforded an opportunity to appear before PANGTEL in connection with an investigation.

(5) PANGTEL shall not, as a result of the investigation, make a finding that is adverse to a complainant or a respondent unless it has afforded the complainant or respondent an opportunity to make submissions in relation to the matter to which the investigation relates.

  1. COMPLAINANT AND CERTAIN OTHER PERSONS TO BE INFORMED OF VARIOUS MATTERS.

Where PANGTEL decides not to investigate, or not to investigate further, a matter to which a complaint relates, it shall, as soon as practicable and in such manner as it thinks fit, inform the complainant and the respondent of the decision of the reasons for the decision.

  1. REFERENCE OF MATTERS TO OMBUDSMAN.

(1) Where, before PANGTEL starts, or after it has started, an investigation of a matter to which a complaint relates, PANGTEL forms the opinion that -

(a) a complaint relating to that matter has been, or could have been, made by the complainant to the Ombudsman; and
(b) the matter could more conveniently or effectively be dealt with by the Ombudsman;

it may decide not to investigate the matter, or not to investigate the matter further, as the case may be.

(2) Where PANGTEL makes a decision under Subsection (1), it shall -

(a) transfer the complaint to the Ombudsman; and
(b) give written notice to the complainant stating that the complaint has been so transferred; and
(c) give to the Ombudsman any information or documents that relate to the complaint and that are in PANGTEL's possession or under its control.
  1. REPORTS ON INVESTIGATIONS.

(1) After concluding an investigation under Section 157(1), PANGTEL may prepare and give to the Minister a report under this section.

(2) After concluding an investigation under Section 157(3) PANGTEL shall prepare and give to the Minister a report under this section.

(3) A report under this section shall cover -

(a) the conduct of the investigation concerned; and
(b) any findings that PANGTEL has made as a result of the investigation.
  1. PANGTEL MAY DIRECT CARRIER TO REMEDY BREACH OF LICENCE CONDITION.

(1) This section applies where, as a result of an investigation under Section 157, PANGTEL is satisfied that a carrier has contravened a condition of a general telecommunications licence or public mobile licence held by the carrier.

(2) Where PANGTEL is satisfied that the contravention consists of failure to do an act required by the condition, PANGTEL may direct the carrier in writing to do that act.

(3) Where PANGTEL is satisfied that the contravention consists of engaging in conduct prohibited by the condition, PANGTEL may direct the carrier in writing to stop engaging in that conduct, or not to engage in it again, or both, as the case requires.

(4) PANGTEL may give a direction under Section (3) whether or not it appears that the carrier intends to continue to engage in that conduct or to engage in it again.

(5) A direction under Subsection (2) or (3) may also direct the carrier to do specified acts that PANGTEL thinks necessary to help remedy the contravention.

  1. PANGTEL MAY DIRECT CARRIER TO PRESCRIBED CARRIER OBLIGATION.

Where, as a result of an investigation under Section 157, PANGTEL is satisfied that a carrier has unreasonably contravened a prescribed carrier obligation, PANGTEL may direct the carrier in writing to comply with that obligation, in relation to a specified service or services, in a manner specified in the direction.

  1. PROTECTION FROM CIVIL ACTIONS.

(1) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:-

(a) the making of a complaint under Section 156;
(b) the making of a statement to, or the giving of a document or information to PANGTEL in connection with an investigation under Section 157; or
(c) the making of a complaint to the Ombudsman; or
(d) subject to Subsection (2), the making of a statement to, or the giving of a document or information to the Ombudsman in connection with the consideration by the Ombudsman of a complaint.

(2) Subsection (1)(d) does not apply to the making of a statement, or the giving of a document or information to the Ombudsman, by -

(a) a carrier; or
(b) a person who supplies an eligible service.
  1. PUBLIC REGISTER OF INFORMATION ABOUT INVESTIGATIONS.

(1) PANGTEL shall keep a register of its investigations under this Part.

(2) The register shall be open to public inspection.

(3) For each complaint under Section 156, the register shall set out the following:-

(a) the name and address of the complainant;
(b) the name of the respondent;
(c) a short summary of the nature of the complaint;

(d) where PANGTEL has decided to investigate the complaint -

(i) the date on which the investigation began; and
(ii) the date on which the investigation ended; and
(iii) a summary of the outcome of the investigation;
(e) where PANGTEL has decided not to investigate the complaint that PANGTEL has so decided.

(4) For each matter that PANGTEL investigates otherwise than because of a complaint, the register shall set out the following:-

(a) a short summary of the nature of the matter;
(b) the names of the persons (if any) to whom the matter relates;
(c) the date on which the investigation began;
(d) the date on which the investigation ended;
(e) a summary of the outcome, of the investigation.

(5) As soon as practicable after it has enough information to enter in the register a matter that a provision of Subsection (3) or (4) requires the register to set out, PANGTEL shall so enter that matter.

PART XVIII - OFFENCES AND PENALTIES.

  1. ESTABLISHING A TELECOMMUNICATION NETWORK, ETC., WITHOUT A LICENCE.

A person, who establishes a telecommunication network or supplies a telecommunication service without a licence, is guilty of an indictable offence.

Penalty:
  1. FRAUDULENT USE OF TELECOMMUNICATIONS NETWORK

A person, who dishonestly obtains a telecommunication service with intent to avoid payment of any charge applicable to the provision of that service is guilty of an indictable offence.

Penalty: A fine not exceeding K500,000.00 or imprisonment for a term not exceeding 15 years, or both.
  1. IMPROPER USE OF TELECOMMUNICATIONS NETWORK

A person who sends, by means of a telecommunications service a message or other matter -

(a) that is offensive or of an indecent, obscene or menacing character; or
(b) for the purpose of causing annoyance, inconvenience or needless anxiety to another person, that he knows to be false or persistently makes use for that purpose of a telecommunication service,

is guilty of an indictable offence.

Penalty: A fine exceeding K20,000.00 or to imprisonment for a term not exceeding 15 years.
  1. MODIFICATION ETC., OF MESSAGE.

A person engaged in supplying a telecommunications service, who otherwise than in the course of his duty intentionally modifies or interferes with the contents of a message sent by means of that network, is guilty of an indictable offence.

Penalty: A fine not exceeding K10,000.00 or imprisonment for a term not exceeding 10 years or both.
  1. INTERCEPTION AND DISCLOSURE OF MESSAGES.

(1) A person engaged in supplying a telecommunications service, who otherwise than in the course of his duty -

(a) intentionally intercepts a message sent by means of that service; or
(b) where a message so sent has been intercepted, intentionally discloses to any person contents of any statement or account specifying the telecommunications services provided for any other person by means of that service,

is guilty of an indictable offence.

(2) A person engaged in supplying a telecommunications service, who otherwise than in the course of his duty intentionally discloses to any person the contents of any statement of account specifying the telecommunications services provided for any other person by means of that service, is guilty of an indictable offence.

(3) Subsection (1) shall not apply to anything done in obedience to a warrant under the hand of the Minister; and Paragraph (b) of that subsection and Subsection (2) shall not apply to any disclosure in connection with the investigation of any criminal offence or for the purposes of any criminal proceedings.

(4) A person guilty of an indictable offence under this section shall be liable on summary conviction, to a fine not exceeding K10,000.00.

  1. PROTECTION OF TELECOMMUNICATIONS INSTALLATIONS.

A person, who intending to -

(a) prevent or obstruct the transmission or delivery of any message; or
(b) commit mischief,

damages, removes or tampers with any installation or plant or any part thereof belonging to a licensee, is guilty of an offence.

Penalty: A fine not exceeding K20,000.00 or to imprisonment for a term not exceeding 15 years or both.
  1. CRIMINAL LIABILITY OF DIRECTORS, OFFICERS ETC., OF BODIES CORPORATE.

Where a corporation commits a crime, an indictable offence or an offence under this Act, any director, officer, employee or agent of the corporation who directed, authorized, assented to or acquiesced or participated in the commission of the crime, the indictable offence or the offence shall be a party to and guilty of the crime, the indictable offence or the offence, and shall be liable to the punishment provided for that crime, indictable offence or offence in respect of an individual, whether or not the corporation has been prosecuted or convicted.

  1. GENERAL PENALTIES.

A person guilty of a crime, an indictable offence or an offence under this Act for which no penalty is expressly provided shall be liable on conviction to a fine not exceeding K10,000.00 or to imprisonment for a term not exceeding 10 years or to both.

  1. CONSENT FOR PROSECUTION UNDER ACT.

With the consent of the Public Prosecutor, any crimes, indictable offences or offences under this Act may be prosecuted by such staff or employee of PANGTEL or persons as PANGTEL may designate.

  1. POWER TO COMPOUND OFFENCES.

(1) Any staff or employee of PANGTEL specially authorized by the Chief Executive, may in his discretion compound any such offence under this Act or any regulations made under it as may be prescribed as being an offence which may be compounded by collecting from the person suspected on reasonable grounds of having committed the offence a sum not exceeding K10,000.00.

(2) PANGTEL, may with the approval of the Minister make regulations prescribing the offences which may compounded.

(3) All sums collected under this section shall be paid to PANGTEL.

  1. PROSECUTIONS UNDER OTHER LAWS.

Nothing in this Act shall prevent any person from being prosecuted under any other written law for any act or omission which constitutes a crime, an indictable offence or an offence under this Act or any regulations made under this Act, or from being liable under that other written law to any punishment or penalty higher or other than that prescribed by this Act or the regulations, but no person shall be punished more than once for the same crime, an indictable offence or offence.

PART X1X. - ENFORCEMENT.

Division 1. - PANGTEL directions and conditions of licences.

  1. ENFORCEMENT OF PANGTEL DIRECTIONS AND CONDITIONS.

(1) This section applies where a licensee -

(a) has engaged in conduct that involves; or
(b) proposes to engage in conduct that would involve;

contravention of -

(c) a PANGTEL direction; or
(d) a condition of a licence.

(2) PANGTEL may apply to the National Court for -

(a) in a case in which Subsection (1)(a) applies - an injunction, a declaration or both; or
(b) in a case to which Subsection (1)(b) applies - an injunction.

(3) Section 194 applies to an application under this section.

(4) Where PANGTEL applies under this section for an injunction, the National Court shall not require the applicant or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages.

  1. PECUNIARY PENALTIES FOR CONTRAVENTIONS OF PANGTEL DIRECTIONS OR CONDITIONS.

(1) Where the National Court is satisfied that a licensee has contravened a PANGTEL direction or a condition of a licence, the Court may order the licensee to pay to PANGTEL such pecuniary penalty (not exceeding K2,000,000.00 in respect of each contravention) as the Court determines to be appropriate having regard to all relevant matters including -

(a) the nature and extent of the contravention and of any loss or damage suffered as a result of the contravention; and
(b) the circumstances in which the contravention took place; and
(c) whether the carrier has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.

(2) Where conduct constitutes a contravention of two or more directions or of two or more conditions of a licence, a proceeding may be instituted under this section against a carrier in relation to the contravention of any one or more of the directions or any one or more of the conditions, but a carrier is not liable to more than one pecuniary penalty under this section in respect of the same conduct.

  1. CIVIL ACTION FOR RECOVERY OF PECUNIARY PENALTIES.

(1) PANGTEL may apply to the National Court to recover on behalf of the State a pecuniary penalty referred to in Section 179.

(2) A proceeding under Subsection (1) may be commenced within six years after the contravention of the direction concerned.

  1. REMEDIES MAY BE PURSUED AT THE SAME TIME.

(1) Nothing in Section 178 prevents the recovery of a pecuniary penalty under Section 180.

(2) Nothing in Section 179 prevents the making of an application, or the granting of relief, under Section 178.

  1. CRIMINAL PROCEEDINGS NOT BE BROUGHT FOR CONTRAVENTIONS OF PANGTEL DIRECTIONS OR CONDITIONS.

Criminal proceedings do not lie against a carrier merely because the carrier has contravened a direction given by PANGTEL or a condition of a licence.

Division 2. - Powers of entry, search and seizure.

  1. APPOINTMENT OF INSPECTORS.

The Chairman may, by signed writing, appoint members of the staff of PANGTEL or such other persons as PANGTEL shall determine to be inspectors for the purposes of this Act.

  1. IDENTITY CARD.

(1) The Chairman shall cause to be issued to each person appointed under Section 174 an identity card that specifies the name and appointment of the person and to which is attached a recent photograph of the person.

(2) A person, appointed under Section 183, who, upon ceasing to be an inspector, fails, without reasonable excuse, to return to the Chairman the identity card issued to him under this section, is guilty of an offence.

Penalty: A fine not exceeding K1,000.00 or imprisonment for a term not exceeding 12 months or both.
  1. SEARCHES TO MONITOR COMPLIANCE WITH ACT ETC.,

(1) Subject to Subsections (2) and (3), an inspector may, to the extent that it is reasonably necessary for the purpose of ascertaining whether Divisions XIII.1 and 2 have been complied with, enter, at any time during the day or night, any premises that the inspector has reasonable cause to believe are premises to which this section applies and -

(a) search the premises; or
(b) inspect and take photographs, or make sketches, of the premises or any substance or thing at the premises; or
(c) inspect any book, record or document kept at the premises; or
(d) remove, or make copies of, any such book, record or document.

(2) An inspector may not, under Subsection (1), enter premises that are a residence unless the occupier of the premises has consented to the entry.

(3) An inspector is not entitled to exercise any powers under Subsection (1) in relation to premises where -

(a) the occupier of the premises has required the inspector to produce his identity card for inspection by the occupier; and
(b) the inspector fails to comply with the requirement.

(4) This section applies to premises at which -

(a) activities that are the subject of regulation under Division XIII.1 or 2 are engaged in; or
(b) records relating to any such activities are kept.
  1. OFFENCE-RELATED SEARCHES AND SEIZURES.

(1) Where an inspector has reasonable grounds for suspecting that there may be on or in any premises a particular thing that may afford evidence as to the commission of an offence to which this section applies, the inspector may -

(a) with the consent of the occupier of the premises; or
(b) under a warrant issued under Subsection (2);

enter the premises and -

(c) search the premises for the thing; and
(d) where the inspector finds the thing on or in the premises - seize the thing.

(2) Where an information on oath is laid before a Magistrate alleging that there are reasonable grounds for suspecting that there may be on or in any premises a particular thing that may afford evidence as to the commission of an offence to which this section applies and the information sets out those grounds, the magistrate may issue a search warrant in accordance with the form prescribed for the purposes of this subsection authorizing an inspector named in the warrant, with such assistance, and by such force, as are necessary and reasonable, to enter the premises and exercise the powers referred to in Subsections (1)(c) and (d) in respect of the thing.

(3) A Magistrate shall not issue a warrant under Subsection (2) unless -

(a) the informant or some other person has given to the Magistrate, either orally or by affidavit, such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought; and
(b) the Magistrate is satisfied that there are reasonable grounds for issuing the warrant.

(4) There shall be stated in a warrant issued under Subsection (2) -

(a) the purpose for which the warrant is issued, and the nature of the offence in relation to which the entry, search and seizure are authorized; and

(b) whether entry is authorized to be made at any time of the day or night or during specified hours of the day or night; and

(c) a description of the kind of things to be seized; and
(d) a day, not being later than one week after the day of issue of the warrant, upon which the warrant ceases to have effect.

(5) Where in the course of searching, under a warrant issued under this section, for a particular thing in relation to a particular offence, an inspector finds a thing that the inspector believes, on reasonable grounds, to be -

(a) a thing that will afford evidence as to the commission of the offence, although not the thing specified in the warrant; or
(b) a thing that will afford evidence as to the commission of another offence to which this section applies,

and the inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the offence or another offence, the warrant is taken to authorize the inspector to seize that thing.

(6) Where an inspector seizes anything under this section, the inspector may retain the thing until the end of 90 days after the seizure or, where proceedings for an offence to which this section applies in respect of which the thing may afford evidence are brought within that period, until the proceedings (including any appeal to a court in relation to those proceedings) are completed.

(7) Anything seized under this section shall be forfeited to the State and shall be dealt with in such manner as PANGTEL considers appropriate.

(8) In this section -

"offence to which this section applies" means -
being an offence that relates to an offence against Division XIII.1 or 2.
  1. WARRANTS MAY BE GRANTED BY TELEPHONE.

(1) Where, because of circumstances of urgency, an inspector considers it necessary to do so, the inspector may apply for a warrant under Section 186(2), by telephone, in accordance with this section.

(2) Before applying for a warrant under Subsection (1), an inspector shall prepare an information of a kind referred to in Section 186(2) that sets out the grounds on which the issue of the warrant is being sought, but may, if it is necessary to do so, apply before the information has been sworn.

(3) Where a Magistrate to whom an application under Subsection (1) is made is satisfied -

(a) after having considered the terms of the information prepared in accordance with Subsection (2); and
(b) after having received such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the Magistrate shall complete and sign such a search warrant as the Magistrate would have issued under Section 186 if the application had been made in accordance with that section.

(4) Where a Magistrate signs a warrant under Subsection (3) -

(a) the Magistrate shall notify the inspector of the terms of the warrant and the date on which and the time at which it was signed, and write on it the reasons for the granting of the warrant; and
(b) the inspector shall complete a form of warrant in the terms notified to the inspector by the Magistrate and write on it the name of the Magistrate and the date on which and the time at which the warrant was signed.

(5) Where an inspector completes a form of warrant in accordance with Subsection (4), the inspector shall, not later than the day after the date of expiry or execution, whichever is the earlier, of the warrant send to the Magistrate who signed the warrant the form of warrant completed by the inspector and the information duly sworn in connection with the warrant.

(6) Upon receiving the documents referred to in Subsection (5), the Magistrate shall attach to them the warrant signed by the Magistrate and deal with the documents in the manner in which the Magistrate would have dealt with the information where the application for the warrant had been made in accordance with Section 186.

(7) A form of warrant duly completed by an inspector in accordance with Subsection (4) is, where it is in accordance with the terms of the warrant signed by the Magistrate, authority for any entry, search or seizure that the warrant so signed authorizes.

(8) Where it is material, in any proceedings, for a court to be satisfied that any entry, search or seizure was authorized in accordance with this section, and the warrant signed by a Magistrate in accordance with this section, authorizing the entry, search or seizure is not produced in evidence, the court shall assume, unless the contrary is proved, that the entry, search or seizure was not authorized by such a warrant.

  1. POWER TO REQUIRE INFORMATION ETC.,

(1) Subject to Subsection (2), an inspector who has entered premises under this Division may, to the extent that it is reasonably necessary for the purpose of ascertaining whether Division XIII.1 and 2 have been complied with, require a person to answer any persons put by the inspector and to produce any books, records or documents requested by the inspector.

(2) An inspector is not entitled to make a requirement of a person under Subsection (1) unless the inspector produces his or her identity card for inspection by the person.

(3) A person who, without reasonable excuse, (the burden of proof of which lies on him) refuses or fails to comply with a requirement made of the person under Subsection (1), is guilty of an offence.

Penalty: A fine not exceeding K5,000.00 or imprisonment for at term not exceeding 5 years or both.
  1. RETENTION OF BOOKS, RECORDS AND DOCUMENTS.

Where an inspector removes a book, record or document from the premises under Section 185(1) or seizes a book, record or document under Section 188 or a person produces a book record or document to an inspector in accordance with a requirement under Section 187(1) -

(a) the inspector may retain possession of the book, record or document for such period as is necessary and reasonable for the purpose of ascertaining whether Division XIII.6 and 7 have been complied with; and
(b) during that period the inspector shall permit a person who would be entitled to inspect the book, record or document if it were not in the inspector's possession to inspect the book, record or document at all reasonable times.

PART XX. - MISCELLANEOUS.

  1. NATURE OF UNENFORCEABILITY OF AGREEMENTS.

(1) Where an agreement, or a provision of an agreement, is unenforceable because of a provision of this Act, a party to the agreement is not entitled, as against any other party -

(a) to enforce the agreement or provision, as the case may be, whether directly or indirectly; or
(b) to rely on the agreement or provision, as the case may be, whether directly or indirectly and whether by way of defence or otherwise.

(2) A party to an agreement to which Subsection (1) applies is not entitled to recover by any means (including, for example, set-off, a quasi-contractual claim or a claim for a restitutionary remedy) any amount that, but for this section, another party would have been liable to pay to the first mentioned party under or in connection with the agreement or provision, as the case may be.

  1. REVIEW OF DECISIONS.

(1) An application may be made to the National Court for the review of a decision under Section 114 reconsidering a decision of PANGTEL under Part XIII.

(2) Where, at the end of 30 days after an application for the reconsideration of a decision of PANGTEL is made under Section 114, PANGTEL has not informed the applicant of its decision on the reconsideration, PANGTEL is taken, for the purposes of this sections -

(a) to have decided, on the last day of the 30 days, to affirm the decision in respect of which the application for reconsideration was made; and
(b) to have informed the application accordingly on that day.

(3) Where, at the end of 14 days after a request has been made under Section 114 for an extension of the period within which an application for reconsideration may be made under Section 114(3), as the case may be, PANGTEL has not informed the person who made the request of its decision whether to grant an extension of the period, PANGTEL is taken, for the purposes of this section -

(a) to have decided, on the last day of the 14 days, to refuse to grant an extension to the period; and
(b) to have informed the person accordingly on that day.
  1. STATEMENT TO ACCOMPANY NOTIFICATION OF DECISION.

(1) Where a decision of a kind referred to in Section 191(1) is made and a notice in writing of the decision is given to a person whose interests are affected by the decision, the notice shall include -

(a) a statement to the effect that application may be made to the National Court for review of the decision; and
(b) a statement to the effect that a person who is entitled to apply to the National Court for the review of a decision may request a statement that includes reasons for the decision.

(2) A contravention of Subsection (1) in relation to a decision does not affect the validity of the decision.

  1. PANGTEL TO REVIEW AND REPORT TO MINISTER ON COMPETITIVE SAFEGUARDS AND CARRIER PERFORMANCE.

(1) PANGTEL shall review, and report to the Minister on, competitive safeguards within the telecommunications industry, including -

(a) matters relating to the operation of Parts V, VI, IX and XI; and
(b) such other matters relating to competition in the telecommunications industry as PANGTEL thinks appropriate.

(2) PANGTEL shall review, and report to the Minister on, carrier performance, including in relation to any carrier -

(a) the efficiency with which the carrier supplies services and facilities; and
(b) the adequacy and quality of the services and facilities supplied by the carrier: and
(c) the appropriateness and adequacy of the strategies and policies that the carrier is following to carry out its prescribed carrier obligations (if any); and
(d) the efficiency with which the carrier is carrying out those obligations; and
(e) such other matters relating to carrier performance as PANGTEL thinks appropriate.

(3) Where reviewing, and reporting on, the matters referred to in Subsections (2)(a) and (b), PANGTEL shall have regard to the performance standards it has developed under Section 32(1)(e).

(4) PANGTEL shall report to the Minister under Subsections (1) and (2) within 12 months of the conclusion of each calendar year.

  1. NATIONAL COURT POWERS RELATING TO THE INJUNCTIONS.

(1) On an application to which this section applies because of another provision of this Act, the National Court may, if in its opinion it is desirable to do so, grant an interim injunction pending determination of the application.

(2) The National Court's power to grant under this Act an injunction restraining a person from engaging in conduct may be exercised -

(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in such conduct; and

(b) whether or not the person has previously engaged in such conduct; and

(c) whether or not there is imminent danger of substantial damage to any person where the first-mentioned person engages in such conduct.

(3) The National Court's power to grant under this Act an injunction requiring a person to do an act may be exercised -

(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that; and
(b) whether or not the person has previously refused or failed to do that act; and
(c) whether or not there is imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act.
  1. PANGTEL MAY OBTAIN INFORMATION AND DOCUMENTS FROM CARRIERS.

(1) Where PANGTEL has reason to believe that a carrier has information or a document that is relevant to the performance of any of PANGTEL's functions or the exercise of any of its powers, PANGTEL may by written notice given to the carrier, direct the carrier, within the time specified in the notice, to give the information to PANGTEL in writing, or to produce the document to PANGTEL, as the case requires.

(2) A person, who fails, neglects or refuses to comply with a notice under Subsection (1), is guilty of an offence.

Penalty: A fine not exceeding K5,000.00 or imprisonment for a term not exceeding two years, or both.

(3) A person, who, in purported compliance with such a notice, knowingly gives information that is false or misleading, is guilty of an offence.

Penalty: A fine not exceeding K5,000.00 or imprisonment for a term not exceeding 2 years.
  1. PANGTEL MAY OBTAIN INFORMATION AND DOCUMENTS FROM PERSONS OTHER THAN CARRIERS.

(1) Where PANGTEL has reason to believe that a person other than a carrier has information or a document that is relevant to the performance of any of PANGTEL's functions or the exercise of any of its powers, PANGTEL may by written notice given to the person, require the person, within the time specified in the notice, to give the information to PANGTEL in writing, or to produce the document to PANGTEL, as the case requires.

(2) A person, who fails, neglects or refuses to comply with a notice under Subsection (1), is guilty of an offence.

Penalty: A fine not exceeding K5,000.00 or imprisonment for a term not exceeding two years or both.

(3) A person, who, in purported compliance with such a notice, knowingly gives information that is false or misleading, is guilty of an offence.

Penalty: A fine not exceeding K5,000.00 or imprisonment for a term not exceeding two years or both.
  1. PERSON TO USE PROTECTED NAME OR PROTECTED SYMBOL

(1) A person, who without the prior written consent of PANGTEL -

(a) uses in relation to a business, trade, profession or occupation; or
(b) uses as the name, or as part of the name, of any firm, body corporate, institution, premises, vehicle, ship or craft (including aircraft); or
(c) applies, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let or hire; or
(d) uses in relation to -

either -

(e) a protected name, or a name so closely resembling a protected name as to be likely to be mistaken for it; or
(f) the protected symbol, or a symbol so closely resembling the protected symbol as to be likely to be mistaken for it,

is guilty of an offence.

Penalty: A fine not exceeding K5,000.00 or imprisonment for at term not exceeding 2 years or both.

(2) Nothing in Subsection (1) limits anything else in that subsection.

(3) Nothing in Subsection (1), so far as it applies in relation to a protected name or in relation to the protected symbol, affects rights conferred by law on a person in relation to -

(a) a trade mark that is registered; or
(b) a design that is registered,

under the relevant Acts.

(4) In this section -

"protected name" means -
"protected symbol" means the official symbol of PANGTEL, the design of which is set out in the regulations.
  1. CONSULTANTS.

(1) PANGTEL may engage such persons as it thinks fit as consultants to advise PANGTEL in respect of the exercise of its powers and the performance of its functions.

(2) A consultant is entitled to such remuneration as is determined by PANGTEL.

  1. POWER OF GOVERNMENT IN EMERGENCY.

(1) Where it appears to the Minister to be expedient or requisite, on the occurrence of any public emergency, or in the interest of public security or national defence, the Minister may, by an order published in the National Gazette or specially in writing give directions to a person to whom this section applies.

(2) Directions given under Subsection (1) may include -

(a) prohibition or regulation of telecommunications systems and radio stations as may be considered necessary; and
(b) the possession of the control of or use for official purposes of telecommunication systems and radio stations; and
(c) the stoppage, delay or interception of telecommunication messages and for the carrying out of any other purposes which the Minister may consider necessary.

(3) The government may -

(a) pay compensation for any loss or damage caused to an operator or owner of a radio station, as the case may be, by reason of compliance with directions under Subsection (2)(b); and
(b) make grants to operators, or owners of radio stations, as the case may be, for defraying or contributing towards any losses which they may sustain by reason of their compliance with the directions of the Minister under any provisions of this section.

(4) Any sums required by the Minister for paying compensation or making grants under Subsection (3) shall be paid out of funds provided by Parliament for the purpose.

  1. DELEGATION.

PANGTEL may, in writing, delegate all or any of its powers and functions (except this power of delegation) under this Act to -

(a) a member; or
(b) a staff member; or
(c) a person whose services are made available to PANGTEL under Section 42(8).
  1. SERVICE OF NOTICES.

(1) Unless otherwise expressly provided in this Act, any notice, order or document required or authorized by this Act or any regulations made thereunder to be given or served on any person, may be served on the person concerned -

(a) by delivering it to the person or to some adult member or employee of this family at his last known residence; or
(b) by leaving it at his usual or last known residence or place of business in a cover addressed to him; or
(c) by affixing it to some conspicuous part of his last known residence; or
(d) by sending it by registered post addressed to the person at his usual or last known residence or place of business; or
(e) where the person is a body corporate -

(2) Any notice, order, or document sent by registered post to any person in accordance with Subsection (1) shall be deemed to be duly served on the person to whom the letter is addressed at the time when the letter would, in the ordinary course of post, be delivered and in proving service of the same it shall be sufficient to prove that the envelope containing the notice, order, or document was properly addressed, stamped and posted by registered post.

  1. REGULATIONS.

(1) The Head of State may make regulations, not inconsistent with this Act, prescribing all matters -

(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) The regulations may make provision for fees and for penalties by way of a fine not exceeding K50,000.00 or imprisonment for a term not exceeding 15 years or both for offences against the regulations.


I hereby certify that the above is a fair print of the Telecommunications Act 1996 which has been made by the National Parliament.

Clerk of the National Parliament.

I hereby certify that the Telecommunications Act 1996 was made by the National Parliament on 13 November 1996 by an absolute majority in accordance with the Constitution.

Speaker of the National Parliament.

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URL: http://www.paclii.org/pg/legis/num_act/ta1996214